Franklin et al v. Keefe Commissary Network LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BRYCE FRANKLIN,
ZACHARY BABITZ,
Plaintiffs,
v. 	No. 25-cv-0478-DHU-SCY
KEEFE COMMISSARY NETWORK LLC, et al,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Bryce Franklin’s Motion to Remand (Doc. 5)
and Motion to Strike (Doc. 6). Also before the Court is Defendant Keefe Commissary Network
LLC’s Motion to Dismiss for Failure to State a Claim (Doc. 3) (Motion to Dismiss). Plaintiffs
Bryce Franklin and Zachary Babitz1 are state prisoners and are proceeding pro se. They initiated
this case by filing a Civil Complaint in New Mexico’s First Judicial District Court. See Doc. 1-2
(Complaint). The Complaint alleges Defendant overcharged Plaintiffs for canteen items at the
Dona Ana County Correctional Facility (DACCF). Id. at 7-10. Ramen noodles cost about 25
cents at Walmart, for example, but Defendant charges $1.25 to DACCF inmates. Id. at 9. The
Complaint raises state law claims for violation of the New Mexico Unfair Practices Act, N.M.S.A.
§ 57-1-1, et seq.; unjust enrichment; and cruel and unusual punishment under the New Mexico
Constitution. Id. at 9-11. Plaintiffs seek unspecified money damages and injunctive relief. Id.
at 11.
1 At one point the opening pleading lists Jose Castaneda as a third co-plaintiff. See Doc. 1-2 at 9.
However, because only Franklin and Babitz signed that pleading, the Court will assume they are the only
plaintiffs in this case. Id. at 12; see also Fed. R. Civ. P. 11(a).
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Defendant removed the case to this Court on the basis of diversity jurisdiction. Defendant
argues jurisdiction is proper because there is complete diversity of citizenship and the amount in
controversy exceeds $75,000. See 28 U.S.C. § 1332(a). At issue here is the amount in
controversy. To resist remand, “[D]efendant must affirmatively establish jurisdiction by proving
jurisdictional facts that made it possible that $75,000 was in play.” McPhail v. Deere & Co., 529
F.3d 947, 953-55 (10th Cir. 2008). Defendant argues the amount may exceed $75,000 -
notwithstanding the seemingly small commissary overcharges - because the Complaint seeks an
injunction ordering Defendant to “lower canteen prices to something comparable to prices offered
to non-incarcerated” individuals. See Doc. 7 at 3; Doc. 1-2 at 11. Defendant estimates this
process could cost tens of thousands of dollars and require the modification of contracts across
numerous facilities. See Doc. 7 at 3. Defendant also filed a Motion to Dismiss, arguing the
Original Complaint fails to state a cognizable claim for relief. See Doc. 3.
Plaintiff Bryce Franklin filed a timely Motion to Remand (Doc. 5). He clarifies that he
spent less than $2,000 at DACCF’s canteen; his damages cannot amount to more than $25,000;
and Babitz “has not spent [$]75,000 because of weekly spending limits paired with the time he has
spent at” DACCF. Id. at 2. A later reply brief also states Plaintiff Franklin “was incarcerated in
[DACCF] for less than two months,” and Defendant “fails to explain how unlawful prices could
possibly result in a total reward that exceeds $75,000.” Id. at 4.
Construing these pro se filings liberally, the Court discerns Plaintiff Franklin is clarifying
his request for injunctive relief and confirming that the Complaint does not seek an injunction
impacting multiple facilities or non-plaintiffs. While parties are generally not permitted to amend
their claims post-removal to reduce the amount in controversy, see Royal Canin U.S.A., Inc. v.
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Wullschleger, 604 U.S. 22, 38 n. 8 (2025), a plaintiff’s clarification regarding the damages amount
can be relevant where, as here, the request for relief is ambiguous. See McPhail, 529 F.3d 947,
954 (10th Cir. 2008) (considering plaintiff’s calculations and informal estimates in evaluating
whether the claims exceed $75,000); Garcia v. Timberlake, 2012 WL 13081216, at *3 (D.N.M.
Jan. 5, 2012) (post-removal affidavit clarifying that amount in controversy did not exceed $75,000
supports remand) (collecting cases); Shupe v. Asplundh Tree Expert Co., 566 Fed. Appx. 476, 481
(6th Cir. 2014) (in determining amount in controversy for purposes of diversity jurisdiction, court
may consider a stipulation clarifying, rather than reducing, the amount in controversy).
Beyond the clarification, it does not appear that Plaintiffs could obtain an injunction
impacting multiple facilities or non-plaintiffs. The claims for injunctive relief may be moot, as
both Plaintiffs have been transferred out of DACCF. See https://www.cd.nm.gov/offender-
search/; see also Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997) (holding that once a
prisoner is released from a prison, neither declaratory nor injunctive relief would have any effect
on defendants’ behavior); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) (the
general rule regardless mootness and injunctive relief applies to transfers between prisons); Griffin
v. Penn, 213 P.3d 514, 517 (N.M. App. 2009) (applying federal standards to prisoner claims arising
under New Mexico law). Moreover, the pro se Plaintiffs cannot pursue class action claims
requiring Defendant to change its pricing throughout the prison system. See McGoldrick v.
Werholtz, 185 Fed. App’x 741, 744 (10th Cir. 2006) (“[B]ecause plaintiffs are pro se, the district
court would have abused its discretion if it had certified a class action.”).
Consistent with this authority, and in light of Plaintiff Franklin’s sworn statements
clarifying the scope of his claims, it appears the $75,000 damages threshold is not met. Plaintiffs
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cannot obtain widespread injunctive relief that impacts other parties, and it appears any
overcharges were small based on the length of detention at DACCF and the amount at issue. In
addition, to the extent Defendant’s briefs allege this case is removable based on subject matter
jurisdiction, such argument fails. While the Complaint references cruel and unusual punishment,
it explicitly raises that claim under Article II of the New Mexico Constitution. See Doc. 1-2 at 8,
11.
Ordinarily, the Court would enter an order remanding this case to state court. The Motion
to Remand cannot be granted outright, however, because only Plaintiff Franklin signed that filing.
Plaintiff Franklin is not an attorney, and he cannot clarify claims or seek relief on behalf of Plaintiff
Babitz. See Perry v. Stout, 20 Fed. App’x 780, 782 (10th Cir. 2001) (“Non-attorney pro se
litigants cannot represent other pro se parties”). To resolve this issue, the Court will deny the
instant Motion to Remand without prejudice and allow Plaintiffs to file an amended motion to
remand that relates back to the original filing. See Reynoldson v. Shillinger, 907 F.2d 124, 126
(10th Cir. 1990) (pro se plaintiffs should ordinarily be given an opportunity to “remedy defects
potentially attributable to their ignorance of federal law”). The Court will also deny Defendant’s
Motion to Dismiss (Doc. 3) and Plaintiff Franklin’s Motion to Strike (Doc. 6) that filing without
prejudice. The parties can re-file those motions if they become relevant at a later time.
Plaintiffs must file the amended motion to remand within thirty (30) days of entry of this
Order. The amended motion should reattach the sworn statements clarifying the scope of the
claims for injunctive relief and the request for damages. It must be signed under oath by both
Plaintiffs. If Plaintiffs fail to timely comply with these instructions, the Court may dismiss this
case without further notice for failure to prosecute and comply with Orders.
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IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 3); Plaintiff Franklin’s
Motion to Remand (Doc. 5); and Plaintiff Franklin’s Motion to Strike (Doc. 6) are DENIED
without prejudice, as set forth above.
IT IS FURTHER ORDERED that Plaintiffs shall sign and file an amended motion to
remand within thirty (30) days of entry of this Order.
____________________________________
HONORABLE DAVID HERRERA URIAS
UNITED STATES DISTRICT JUDGE
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