United States District Court, D. South Carolina
Michael E. Hamm, alk/a Michael Eugene Hamm; Jimmy E. Blessing; William Hunnicutt; William F. Brinson; Steve Miller; Robert Ferguson; David Morris; Kenneth Campbell, Plaintiffs,
Ms. Holly Scaturo, Director; Ms. Poholchck, BMC; Ms. Helff, BMC; Capt. Abney, Dept. Of Public Safety; Lt. Jacobs, Dept. Of Public Safety; Dr. Gothard, Psychologist; Ms. Jones, Case ManagerlCC; Wheeler, Case Manager; Ms. Goodwin, Case Manager; Mr. Jones, Case Manager; Ms. Nance, Case Manager; Ms. Sutton, Case Manager; Ms. Fredricks, Case Manager; Mr. Morton, Activity Therapy Supervisor; Ms. Gamer, Paralegal, Defendants.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, Magistrate Judge.
This action was originally filed by the Plaintiffs,  pro se, in the South Carolina Court of Common Pleas. Plaintiffs are all confined at the South Carolina Department of Mental Health (SCDMH) as part of the Sexually Violent Predator (SVP) Treatment Program pursuant to the South Carolina SVP Act, S.C. Code Ann. §§ 44-48-10 through XX-XX-XXX. The Defendants thereafter removed this action to federal court, asserting federal question jurisdiction on the grounds that Plaintiffs' Complaint raises Issues of federal law (claims under the First and Fourteenth Amendments). Defendants filed their Answer to the Complaint on October 8, 2015.
On November 23, 2015, Plaintiff Michael E. Hamm filed a motion for default judgment, purportedly on behalf of all of the Plaintiffs, in which he requests a default judgment, class action certification, and appointment of counsel. ECF No. 16. Plaintiff Hamm had also previously filed a response to Defendants' answer on October 21, 2015, in which he argued that the Defendants are in default, and provided a copy of his motions (filed in the state court) for class action certification and appointment of counsel (ECF No. 9-1, at 19-21), and for default judgment (ECF No. 9-1 at 25-26).
Due to the nature of these motions, and the convoluted nature and posture of this case and Plaintiffs' allegations, the undersigned has issued this Report and Recommendation to set forth a path forward for consideration of this case and these claims.
Initially, the undersigned is constrained to note that Plaintiff Hamm asserts that he has filed the motions referenced hereinabove on behalf of all the Plaintiffs and that he is the litigant for the Plaintiffs. However, a pro se Plaintiff may not represent other Plaintiffs. See Hummer v. Dalton, 657 F.2d 621, 625-626 (4th Cir. 1981)[a pro se prisoner cannot act as a "knight-errant" for other]; Oxendine v. Williams, 509 F.2d 1405, 1407 & n. * (4th Cir. 1975)[a pro se prisoner unassisted by counsel cannot be an advocate for others in a class action]; Inmates v. Owens, 561 F.2d 560, 562-563 (4th Cir. 1977) [one pro se inmate does not have standing to sue on behalf of another inmate]. Therefore, Plaintiff Hamm may not represent, or file motions on behalf of, anyone in this case other than himself. See also Myers v. Loudon Co. Pub. Sch., 418 F.3d 395, 401 (4th Cir. 2005)[finding that a pro se person's right to litigate for oneself does not create a similar right to litigate on behalf of others]; Asad v. Arab Bank, PLC, 117 F.Appx. 466, 467 (7th Cir. Nov. 12, 2004) [Plaintiff who is not a lawyer may not represent the interests of any other litigant].
Motion for Default Judgment
In his motion for default judgment (ECF No. 16, see also ECF Nos. 9, 9-1), Plaintiff Hamm asserts that the Defendants were served on September 1, 2015 (see ECF No. 9-1),  and that Defendants are in default because they did not file an answer within thirty days (by filing an answer on or before October 1, 2015). However, Defendants filed their notice of removal on October 1, 2015, within thirty days of service; see 28 U.S.C. § 1446 ["The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief...."]; and in a removed action, "[a] defendant who did not answer before removal must answer...within the longest of.... (C) 7 days after the notice of removal is filed." Fed.R.Civ.P. 81(c)(2). Defendants filed their Answer on October 8, 2015. (See ECF No. 7). Thus, Defendants timely filed their answer in this Court, and Plaintiff Hamm's motion for default judgment should therefore be denied.
Motion for Certification as a Class Action
Plaintiff Hamm also requests that this action be certified as a class action and that counsel be appointed. ECF No. 16, see also ECF No. 9-1. Defendants contend that Plaintiff Hamm's motions should be denied because Plaintiff Hamm, as a pro se litigant, may not pro se pursue a class action or represent the interests of other persons in the SVP Treatment Program. ECF No. 17.
Plaintiff carries the burden of establishing each of the requirements for a class action. See, e.g., Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 321 (4th Cir. 2006)["[I]t is the plaintiff who bears the burden of showing that the class does comply with Rule 23."] (emphasis in original). Rule 23 (a) provides that one or more members of a class may sue as representative parties on behalf of all members 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." Fed.R.Civ.P. 23(a).
Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We recognized in Falcon that "sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, " 457 U.S. at 160, 102 S.Ct. 2364, and that certification is proper only if "the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied, " id., at 161, 102 S.Ct. 2364; see id., at 160, 102 S.Ct. 2364 ("[A]ctual, not presumed, conformance with Rule 23(a) remains... indispensable"). Frequently that "rigorous analysis" will entail some overlap with the merits of the plaintiffs underlying claim. That cannot be helped.
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551-52 (2011).
Courts have characterized the four requirements of Rule 23(a) as the requirements of numerosity, commonality, typicality, and adequacy of representation, with "the final three requirements of [the rule] tend[ing] to merge, ' [so that] commonality and typicality [serve] as guideposts for determining whether... maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.'" Brown v. Nucor Corp., 576 F.3d 149, 152 (4th Cir. 2009) (quoting Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 337 (4th Cir. 1998)); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. at 2551 n.5. In addition to satisfying the requirements enumerated in Rule 23(a), Plaintiffs must also demonstrate that the putative class satisfies one of the three sub-parts of Rule 23(b) that:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating ...