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Burnham v. Demoura

United States District Court, D. Massachusetts

July 17, 2018

ARTHUR BURNHAM, on behalf of 45 Block-2 Prisoners, “class action, ” Plaintiff,
v.
DOUGLAS W. DEMOURA, et al., Defendants.

          ORDER

          ALLISON D. BURROUGHS DISTRICT JUDGE

         For the 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.

         I. Background

         On July 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.

         Burnham 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.

         Burnham 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. ¶ 58.

         Burnham 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.[1] 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.

         II. Discussion

         A. Motion for Leave to Proceed in Forma Pauperis

         Upon 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).

         B. Motion for Class Certification

         Even if 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).

         III. ...


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