United States District Court, D. Massachusetts
ARTHUR BURNHAM, on behalf of 45 Block-2 Prisoners, “class action, ” Plaintiff,
DOUGLAS W. DEMOURA, et al., Defendants.
ALLISON D. BURROUGHS DISTRICT JUDGE
reasons stated below, the Court (1) grants the
plaintiff's motion for leave to proceed in forma
pauperis; (2) orders that summonses issue; and (3)
denies the plaintiff's motion for class certification.
13, 2018, pro se plaintiff Arthur Burnham, who is confined at
MCI Cedar Junction, filed a civil rights complaint under 42
U.S.C. § 1983 and state law in which he complains that
he and the other prisoners at MCI Cedar Junction are being
subjected to cruel and unusual punishment, in violation of
the Eighth Amendment, because temperatures in their cells
have recently reached 120° and prison officials refuse to
turn on exhaust fans to abate the situation. According to
Burnham, beginning on June 30, 2018, he and other prisoners
complained to prison officials about the excessive heat in
their cells and asked that exhaust fans be turned on to
reduce the temperature. Correction officers allegedly
responded that they were not allowed to do so. Burnham claims
that multiple prisoners experienced heat stroke, fainting,
and other conditions because of the cell temperatures, and
that these inmates required medical attention.
reports that, beginning on June 30, 2018, he made several
attempts to obtain a grievance form to formally complain that
the exhaust fans were not being employed, but that prison
employees refused to provide him with the same. He states
that he told prison employees that he was preparing to file a
class-action lawsuit concerning the temperature in the prison
and showed them a cover sheet for the same.
represents that, since July 4, 2018, the exhaust fans have
been periodically turned on for all the blocks at MCI Cedar
Junction except for the Block 2, where Burnham is housed.
Burnham asserts that his block was singled out in retaliation
for attempting to file grievances about the heat and stating
that he would file a class action. The plaintiff alleges that
this action has placed him “at grave risk of reprisal
from dangerous now agitated prisoners.” Compl. ¶
purportedly brings this action on behalf of himself and the
other prisoners of Block 2. He has filed a separate motion
for certification of a plaintiff class, with himself as the
representative party. Burnham argues in his motion that class
certification is in the interest of justice because, absent
class certification, the case will become moot when he is
released from prison on August 23, 2018.
Motion for Leave to Proceed in Forma Pauperis
review of Burnham's motion for leave to proceed in
forma pauperis, the Court finds that he is without
income or assets to prepay the filing fee. Accordingly, the
motion is granted. Because it appears that Burnham has been
without income or assets for the six months preceding the
filing of this action, no initial partial filing fee is
assessed. The entire $350 filing fee will be collected in
accordance with 28 U.S.C. § 1915(b)(2).
Motion for Class Certification
the proposed class of Block 2 prisoners met all the class
certification requirements of Rule 23(a) of the Federal Rules
of Civil Procedure, the absence of counsel prevents the Court
from certifying a class. Section 1654 of Title 28 of the
United States Code provides, in pertinent part, that
“[i]n all courts of the United States the parties may
plead and conduct their own cases personally or by
counsel”) (emphasis added). This statute
“bar[s] a non-lawyer from representing anyone but
himself.” O'Diah v. Volkswagen of Amer.,
Inc., 91 Fed. App'x 159, 160 (1st Cir.
2004) (per curiam). Thus, a class must be represented by
counsel because one member of the class (including a
“representative party”) “cannot litigate
the claims of another class member. See, e.g.,
Anderson v. Brown, 668 Fed.Appx. 221, 222 (9th Cir.
2016) (per curiam); Johnson v. Brown, 581 Fed.Appx. 777, 781
(11th Cir. 2014) (per curiam); Sinclair v. Citi Mortg.,
Inc., 519 Fed.Appx. 737, 739 (3d Cir. 2013) (per
curiam); Szubielski v. Pierce, 152 F.Supp.3d 227,
233 (D. Del. 2016); Vazquez v. Fed. Bureau of
Prisons, 999 F.Supp.2d 174, 177-78 (D.D.C. 2013).