Opinion
Civil No. 02-4100 ADM/RLE
December 30, 2003
Plaintiff argues that there are ten named plaintiffs in this lawsuit. However, Craig Alien Smith is the only plaintiff who filed the action and who qualified for in forma pauperis standing. See Compl. Am. Compl; Order of 02/21/03. Further, Smith has not amended the Complaint to join additional plaintiffs. The Court, therefore, views Smith as the sole plaintiff.
Lonnie F. Bryan, Minneapolis, MN, for Defendants
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge for consideration of Craig Alien Smith's ("Plaintiff" or "Smith") Objections [Docket No. 49] to Magistrate Judge Raymond L. Erickson's Order and Report and Recommendation ("RR") of September 9, 2003 Pocket [Nos. 43 44]. Plaintiff filed this action to contest a rule change that prohibits inmates from obtaining or possessing copies of their Pre-sentence Investigation Reports ("PSRs") and Statements of Reasons from Judgment(s) ("SORs"). See Federal Bureau of Prisons, U.S. Dep't of Justice, Program Statement No. 1351.05 (2002) ("P.S. No. 1351.05"). The rule change continues to allow prisoners access to PSRs and SORs. Smith seeks an order enjoining the program changes, certifying a class action, and granting an evidentiary hearing. Magistrate Judge Erickson denied Plaintiffs Motion for an Evidentiary Hearing [Docket No. 20], and recommended denying Plaintiffs Motion for a Temporary Restraining Order [Docket Nos. 4 14] and Motion to Certify a Class Action Pocket [No. 6]. For the reasons explained below, Judge Erickson's Order is affirmed and the RR is adopted. The RR sets forth the factual and procedural background for this matter, which is hereby incorporated by reference for Smith's present Objections.
II. DISCUSSION
The district court must undertake an independent, de novo review of those portions of the RR to which a party objects, and "may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. LR 72.1(c)(2). When reviewing orders issued by magistrate judges, the district court must set aside any portion "found to be clearly erroneous or contrary to law." D. Minn. LR 72.1(b)(2). Thus, the Court will review Plaintiffs Objections to the RR de novo, and his Appeal from Judge Erickson's Order under the clearly erroneous standard.
The Court treats Plaintiffs objection to Judge Erickson's Order denying an evidentiary hearing as an appeal under D. Minn. LR 72.1(b)(2).
Plaintiff first objects to the recommendation that his Motion for Class Certification be denied. As the party seeking class certification, Plaintiff must prove that his case meets the four prerequisites outlined in Federal Rule of Civil Procedure 23(a). Fed.R.Civ.P. 23; see Coleman v. Watt. 40 F.3d 255, 259 (8th Cir. 1994). Rule 23(a) states:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. See Fed, R. Civ. P. 23(a).
While Plaintiffs purported class meets Rule 23(a)'s numerosity requirement, it fails to satisfy the Rule's other three prerequisites. First, Plaintiff has not demonstrated that there are questions of law or fact common to the class. Plaintiff claims that the issue of whether a federal prisoner has a due process right to maintain a copy of his or her PSR dominates this lawsuit. However, this suggestion overlooks inmates' varied rights in obtaining PSRs, differences that result because some PSRs are regulated by the sentencing court's local rules and others are governed by court orders. See Def's Ex. List, Exs. 1, 14-18. Because of these differences, inmates individualized concerns predominate over any common factual or legal questions.
Second, Plaintiff does not prove typicality under Rule 23(a). To satisfy typicality, the named plaintiff and class members must have similar claims. See DeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1174-75 (8th Cir. 1995). Plaintiff apparently names the entire federal prison population as the class, but has not shown how his claims are typical for this diverse group which includes INS detainees, pretrial detainees, and mental health inmates, as well as inmates like Smith who are serving federal sentences. See Benning Dec. ¶ 18. Further, Plaintiff has not shown how lacking physical possession of one's PSR equally impedes prisoners' access to the courts, given the varied subject matter of potential lawsuits. For example, an inmate suing about prison conditions would not require a PSR in preparing his claim. Because of these differences, Plaintiff has not shown typicality.
Finally, Plaintiff also fails to satisfy the fourth requirement, adequacy of representation. In analyzing Rule 23(a)(4), courts should consider both "whether the class representatives have common interests with the class members," and whether the named plaintiffs "will vigorously prosecute the interests of the class through qualified counsel." Paxton v. Union Nat. Bank, 688 F.2d 552, 562-63 (8th Cir. 1982) (emphasis added). Plaintiff meets neither requirement. First, Smith's interests conflict with class members who might favor implementation of P.S. No. 1351.05 for security reasons. The Bureau of Prisons ("BOP") implemented the rule to protect inmates who were harassed by other inmates based on information contained in their PSRs. See Richardson Dec. ¶¶ 4-5. Second, a pro se litigant, especially one untrained in law, cannot fairly and adequately protect the interests of the other class members. See Johns v. County of San Diego. 114 F.3d 874, 876 (9th Cir. 1997) (finding that non-attorney may appear pro se on his own behalf but may not represent others); Covington v. Allsbrook, 636 F.2d 63, 64 (4th Cir. 1980) (holding that non-lawyer inmate was not qualified to represent fellow inmates in class action claim), abrogated on other grounds by Becker v. Montgomery, 532 U.S. 757 (2001)); Allnew v. City of Duluth, 983 F. Supp. 825, 830 (D. Minn. 1997) (same). Because Smith fails to satisfy either Paxton factor, he cannot adequately represent the proposed class. Plaintiffs Motion to Certify a Class Action is therefore denied.
Plaintiff next objects to the RR's determination that his Motion for a Temporary Restraining Order ("TRO") be denied. Eighth Circuit courts must balance the four factors outlined in Dataphase Sys., Inc. v. C.L. Sys. Jnc., 640 F.2d 109 (8th Cir. 1981), before granting injunctive relief. These factors include: (1) the threat of irreparable harm to the moving party if an injunction is not granted, (2) the harm suffered by the moving party if injunctive relief is denied as compared to the effect on the non-moving party if the relief is granted, (3) the probability that the moving party will succeed on the merits, and (4) the public interest. Id. at 113.
Injunctive relief is not warranted in this case based on the above factors. First, Plaintiff has not proven that irreparable harm will result if the TRO is denied. While prison officials have refused to give inmates copies of their PSRs, prisoners can review these documents. Benning Dec. ¶ 17. Additionally, Smith has not shown how lacking physical possession of PSRs has impeded inmates' access to court, or included evidence in the record illustrating that prisoners who possess PSRs have faced punishments beyond having the documents confiscated. See Am. Compl. Exs. A-G; Mot. to Supplement Compl. Exs. D-G; PL's Ex. List, Exs. C-D. Therefore, the irreparable harm prong favors denying the TRO.
Second, the balance of harms weighs against injunctive relief as well. The BOP implemented P.S. No. 1351.05 to improve prison security because some inmates, looking for informants, pressured other prisoners to reveal the contents of their PSRs. While forbidding inmates to maintain copies of PSRs may inconvenience some prisoners, they can still access PSRs through an established process. Id. ¶ 6; see also P.S. No. 1351.05 at 16-18. Because threats to prisoner safety outweigh this slight harm to inmates, this factor disfavors granting a TRO.
Third, Plaintiff has not proven a likelihood of success on the merits. Plaintiffs sole cause of action is premised on the Fifth Amendment's due process clause, as he claims that implementation of P.S. No. 1351.05 violates inmates' rights by limiting their access to court. See PL's Objections to Defs.'s Cited Authority [Docket No. 41]. Plaintiff must show actual injury or prejudice to prevail on an access-to-courts claim, which has not yet been established. See Kind v. Frank, 329 F.3d 979, 981 (8th Cir. 2003). Consequently, Plaintiff is unlikely to prevail on the merits of his claim.
Finally, the public interest also favors denying relief. The public possesses an interest in ensuring that federal prisoners have access to court, but this is countered by concerns about prison security. Because of these competing considerations, Plaintiff has not shown that granting a TRO is in the public interest. Plaintiffs Motion for a TRO is thus denied.
Plaintiff also appeals Judge Erickson's Order of September 9, 2003 that denies his Motion for an Evidentiary Hearing. Judge Erickson's Order must stand because it is not clearly erroneous or contrary to law. See D. Minn. LR 72.1(b)(2). Plaintiff has not identified evidence that could be developed at a hearing. Further, Plaintiff has not explained why a hearing is necessary to procure such evidence, since he could instead supplement the record by submitting additional affidavits or other exhibits. Therefore, Plaintiffs Appeal from Judge Erickson's Order denying an evidentiary hearing is denied.
III. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Plaintiff's Objections [Docket No. 49] are DENIED;
2. The RR Pocket [No. 44] is ADOPTED;
3. Plaintiff's Motion to Certify a Class Action [Docket No. 6] is DENIED;
4. Plaintiff's Motion for a Temporary Restraining Order [Docket Nos. 4 14] is DENIED;
5. Judge Erickson's Order denying Plaintiffs Motion for an Evidentiary Hearing [Docket No. 43] is AFFIRMED.