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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barber v. Schmidt (7/31/2015) sp-7026

Barber v. Schmidt (7/31/2015) sp-7026

        Notice:  This opinion is subject to correction before publication in the PACIFIC REPORTER .  

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

        corrections@akcourts.us.  



                 THE SUPREME COURT OF THE STATE OF ALASKA  



JAMES BARBER,                                  )        Supreme Court Nos. S-15141/15152  

                                               )       (Consolidated)  

                Appellant,                     )  

                                               )        Superior Court No. 3AN-12-07764 CI  

        v.                                     )  

                                               )       O P I N I O N  

JOSEPH SCHMIDT, BRYAN                          )  

BRANDENBURG, SAM                               )       No. 7026 - July 31, 2015  

EDWARDS, CARMEN                                )  

GUTIERREZ, JACK L. EARL, JR.,                  )  

MICHAEL ALEXANDER,                             )  

ANTHONY GARCIA, SAM                            )  

WILLIAMS, and TOMMY                            )  

PATTERSON,                                     )  

                                               )  

                Appellees.                     )  

_______________________________  )
  

                                               )
  

JACK L. EARL, JR.,                             )
  

                                               )
  

                Appellant,                     )
  

                                               )
  

        v.                                     )  

                                               )  

JOSEPH SCHMIDT, BRYAN                          )  

BRANDENBURG, SAM                               )  

EDWARDS, CARMEN                                )  

GUTIERREZ, MICHAEL                             )  

ALEXANDER, ANTHONY                             )  

                                    

GARCIA, SAM WILLIAMS,                          )  

TOMMY PATTERSON, and                           )  


----------------------- Page 2-----------------------

                            1  

JAMES BARBER,                                             )
  

                                                          )
  

                   Appellees.                             )
  

_______________________________ )
  



                   Appeal from the Superior Court of the State of Alaska, Third  

                   Judicial District, Anchorage, John Suddock, Judge.   



                   Appearances: James Barber, pro se, Wasilla, Appellant.  Jack  

                                          

                   L.  Earl,  Jr.,  pro  se,  Juneau,  Appellant.                John  K.  Bodick,  

                                                                                  

                   Assistant  Attorney  General,  Anchorage,  and  Michael  C.  

                   Geraghty, Attorney General, Juneau, for Appellees Joseph  

                                                               

                   Schmidt,  Bryan  Brandenburg,  Sam  Edwards,  and  Carmen  

                   Gutierrez.  



                   Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                                        

                   Bolger, Justices.  



                   STOWERS, Justice.  



I.        INTRODUCTION  



                   Six Alaska prisoners jointly filed a pro se putative class-action complaint  

                                                                        



against various Department of Corrections officials.  Their complaint detailed 18 causes  

                                         



of  action,  many  of  which  address  changes  in  Department  policy  regarding  inmate  

     



purchase  and  possession  of  gaming  systems  and  restrictions  on  mature-rated  video  

                      



games.  



          1        We  note  that  in  the  Barber  appeal,  appellees  Earl,  Alexander,  Garcia,  



Williams, and Patterson were listed as plaintiffs in the underlying superior court case.  

                                                                                                 

In the Earl  appeal, Alexander, Garcia, Williams, Patterson, and Barber were likewise  

listed as plaintiffs.  They are listed as appellees here pursuant to Alaska Appellate Rule  

                                                                                              

204(g) but have not participated.  We  have omitted John Doe and Jane Doe parties  

named as defendants in the superior court because they were not named and did not have  

                                        

any role in the proceedings.  



                                                             -2-                                                      7026
  


----------------------- Page 3-----------------------

                                                                    

                    One of the prisoners moved for class certification and for appointment of  



               

counsel.  The superior court denied the class action motion on the grounds that pro se  



plaintiffs cannot represent a class, and denied the appointment of counsel motion as well.  



                                                                                                                   

The Department moved for dismissal of the prisoners' complaint for failing to state a  



                                                                                           

claim upon which relief could be granted.  The superior court granted this motion on the  



ground that all of the claims were class action claims that could not be pursued.   



                    Two of the plaintiffs, Jack L. Earl, Jr. and James Barber, each filed an  



                                                                                                       

appeal.       They  argue  that  the  superior  court  erred  in  denying  the  motion  for  class  



                                                                                                          

certification,  denying  the  motion  for  appointment  of  counsel,  and  dismissing  the  



complaint for failure to state a claim upon which relief can be granted.  We consolidated  



                                                     

the appeals. We affirm the superior court's denials of class certification and appointment  



                                                                                               

of counsel, but we reverse the dismissal of the action and remand for further proceedings.  



II.       FACTS AND PROCEEDINGS  



                                                                              

                    In  May  2012  Alaska  prisoners  Jack  L.  Earl,  Jr.,  Michael  Alexander,  



                                                 

Anthony Garcia, Sam Williams, Tommy Patterson, and James Barber, all signing on the  



same complaint, collectively filed a putative class-action complaint against Department  

of Corrections Commissioner Joseph Schmidt and other Department officials.2                                               The  



                                                                                                                     

complaint detailed 18 causes of action, alleging violations of their rights under both the  



Alaska  and  United  States  Constitutions.    Many  of  the  alleged  violations  pertain  to  



changes in Department policy regarding inmate purchase and possession of gaming  



systems  (e.g.,  Xbox  and  PlayStation),  as  well  as  restrictions  on  mature-rated  video  



games.  The prisoners represented themselves.  



                    Earl moved for class certification under Alaska Rule of Civil Procedure  



                                                                                                       

23(a).  He also moved for court-appointed counsel and a temporary restraining order.  



          2  

                                                     

                    Cf. Alaska R. Civ. P. 20(a) (allowing multiple plaintiffs to bring joint or  

several claims based on same transaction).  



                                                              -3-                                                           7026  


----------------------- Page 4-----------------------

                                                               

The Department filed an opposition to the motion for class certification on the grounds  



                                                                                                     

that pro se plaintiffs cannot represent a class in a class-action lawsuit and because all of  



the  claims  were  class-action  claims;  in  the  same  one-page  filing  it  cross-moved  for  



dismissal of the complaint on the grounds that, absent a certifiable class, it failed to state  



a claim upon which relief could be granted.  Barber and Earl each responded to the  



                                                                                            

Department's opposition to class certification, arguing that it was premature pending  



resolution of the appointment of counsel motion.  



                    The  superior  court  denied  Earl's  motion  for  class  certification  on  the  



                                                                       

grounds that a pro se plaintiff cannot represent a class in a class-action lawsuit.  The  



                                                          

court  also  ruled  that  there  was  "no  provision  in  [Alaska]  statutes  or  the  Alaska  



                                                                                                       

Administrative Code for appointment of counsel to inmates for prison rights litigation."  



Finally, the court concluded that since the class could not be certified and since there  



                        

were no claims that were not class-action claims, the plaintiffs had failed to state a claim  



upon which relief could be granted.  It therefore dismissed the complaint.  Earl and  



Barber each filed appeals, which we consolidated.  



III.      STANDARD OF REVIEW  

                                                                                                                       3 the  

                   We review the denial of class certification for abuse of discretion, 



          3        Bartek v. State, Dep't of Natural Res., Div. of Forestry ,  31 P.3d 100, 101  



(Alaska 2001) (citing State,  Dep't of Revenue v. Andrade                        , 23 P.3d 58, 65 (Alaska 2001)),   

superseded by statute as stated in Brewer v. State, 341 P.3d 1107, 1119 n.79 (Alaska  

2014).  



                                                             -4-                                                       7026
  


----------------------- Page 5-----------------------

                                                                                           4 

denial of a motion to appoint counsel for abuse of discretion,  and the dismissal of a  

complaint for failure to state a claim upon which relief can be granted de novo.5  



IV.	      DISCUSSION  



          A.	       The Superior Court Did Not Abuse Its Discretion By Denying The  

                   Prisoners' Motion For Class Certification.  



                   Alaska Rule of Civil Procedure 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.  



                   The issue in this case involves the fourth prong of Rule 23(a), specifically  

                                                                                          

whether a pro se plaintiff can "fairly and adequately protect the interests of the class."6  

                                                                                                           



                                    

In Hertz v. Cleary , we held that "a pro se plaintiff . . . may not properly represent a  



          7                                                                                                                  8  

                                                                         

class."   In explaining why, we pointed favorably to a federal case, Shaffery v. Winters,  



          4        Midgett v. Cook Inlet Pre-Trial Facility                 , 53 P.3d 1105, 1109 (Alaska 2002)  



(citing Balough v. Fairbanks N. Star Bor. , 995 P.2d 245, 254 (Alaska 2000)) ("The  

decision to appoint counsel for a civil litigant is a procedural decision, which we review  

                                                                                         

for abuse of discretion.").  



          5	        Caudle v. Mendel, 994 P.2d 372, 374 (Alaska 1999).  



          6  

                                                                                                      

                   The Department, in its opposition to class certification, did not challenge  

the other three prongs.  



          7         835 P.2d 438, 442 n.3 (Alaska 1992).  We also applied this rule in an  



                                                                                                                 

unpublished case.  Latham v. Alaska Pub. Defender Agency , Mem. Op. & J. No. 1254,  

                                                                           

2006 WL 1667661, at *4 (Alaska June 14, 2006).  



          8         72 F.R.D. 191, 193 (S.D.N.Y. 1976).  



                                                             -5-	                                                      7026
  


----------------------- Page 6-----------------------

                                                                                                      9  

                                                                                                          

and noted identical language in federal and Alaska class-action rules.  Shaffery involved  



an attempt by a pro se litigant to represent a class of prisoners in a class action against  



                                                                            10  

                                                                                                               

New York's Department of Correctional Services.                                  The Shaffery court explained that  



                                                                              

"[o]ne of the more important considerations in this regard goes to the qualifications and  



                                                   11  

expertise  of  plaintiff's  counsel."                    The  court  commended  the  litigation  efforts  of  



Shaffery, but nevertheless concluded that "it would be improper to permit . . . a pro se  



litigant who is not an attorney and who labors under the restrictions of incarceration, to  

litigate as a class action a question as significant as that raised by the complaint."12  



                    Earl  concedes  that,  given  our  decision  in  Hertz ,  the  fourth  prong  of  



Civil Rule 23(a) cannot be satisfied without the appointment of counsel.  He previously  



                                                                                                                        

acknowledged this in his motion for class certification, noting that "none of the lead  



                                                                

plaintiffs  would  be  allowed  or  indeed  fully  capable  (although  meaning  well)  to  



                              

adequately protect the interests of the entire class membership . . . especially in light of  



Hertz v. Cleary ."  Barber also does not challenge the superior court's interpretation or  



                                                                                     

application of Hertz .   So, while this issue is raised on appeal, all parties agree that a  



                                                                   

pro se litigant cannot represent a class given current precedent.  Whether counsel should  



                                                                          

therefore have been appointed is a separate issue altogether, but a class simply cannot be  



                                              

certified with pro se plaintiffs at the helm.  The superior court did not abuse its discretion  



in denying the motion for class certification.  



          9         Hertz ,  835  P.2d  at  442  n.3;  compare   Fed  R.  Civ.  P.  23(a)(4),  with  



Alaska R. Civ. P. 23(a)(4).  



          10        Shaffery, 72 F.R.D. at 192.  



          11        Id . at 193.  



          12        Id .  Shaffery attempted to challenge the Department of Co                           rrections' refusal  



to implement a policy that would allow for prisoners in different   states  to   share legal  

resources.  Id . at 192.  



                                                               -6-                                                         7026
  


----------------------- Page 7-----------------------

          B.	       The Superior Court Did Not Abuse Its Discretion By Denying The  

                    Prisoners' Motion To Appoint Counsel.  



                                                                                     

                    We have held that "an indigent person does not have a right to appointed  



                                          13  

                                              However, we have allowed the appointment of counsel  

counsel in most civil cases." 



                        

in "certain civil cases or quasi-civil proceedings by relying on the principles that justify  



                                                                        14  

                                                                            We have required the appointment  

                                                                                                             

appointment of counsel in criminal proceedings." 



of counsel in cases that involve "termination of parental rights, child custody, paternity  

                                                                                                     

suits, and civil contempt proceedings for nonpayment of child support."15  



                    In  Midgett  v.  Cook  Inlet  Pre-Trial  Facility ,  we  noted  that  the  pro  se  



                                                       

plaintiffs did not fall into one of "the already recognized exceptions for appointment of  



                                              16  

                                                  However, rather than ending our analysis there, we  

counsel in a civil proceeding." 



considered whether the plaintiffs' due process rights might have been violated under the  

                                                                    



                               17	                     18 

Mathews v. Eldridge               balancing test.          This test provides:  



                    that  identification  of  the  specific  dictates  of  due  process  

                                                           

                    generally  requires  consideration  of  three  distinct  factors:  

                    [f]irst, the private interest that will be affected by the official  

                                                                                            

                    action; second, the risk of an erroneous deprivation of such  

                    interest through the procedures used, and the probable value,  

                                                                           

                    if any, of additional or substitute procedural safeguards; and  

                                                                     

                    [third],  the  Government's  interest,  including  the  function  



          13       Midgett v. Cook Inlet Pre-Trial Facility , 53 P.3d 1105, 1111 (Alaska 2002).  



          14       Id . (citing Reynolds v. Kimmons , 569 P.2d 799, 801 (Alaska 1977)).  



          15       Id. (footnotes omitted).  



          16       Id .  



          17        424 U.S. 319 (1976).  



          18       Midgett , 53 P.3d at 1111 (citing In re K.L.J. ,   813 P.2d 276,  279 (Alaska  



 1991) (incorporating the Mathews test into Alaska law)); see also  Mathews , 424 U.S. at  

321, 335.  



                                                             -7-	                                                      7026
  


----------------------- Page 8-----------------------

                   involved and the fiscal and administrative burdens that the  

                   additional   or   substitute   procedural   requirement                    would  

                            [19] 

                   entail.  



In  Midgett ,  we  held  that  a  claimant's  economic  interests  were  "not  particularly  



                            

compelling" under Mathews and were certainly less compelling than the aforementioned  



                                                                              20  

                                                                                  We further held that, while  

contexts in which appointment of counsel is required. 



Midgett would have certainly been better off with a lawyer than without, this fact in and  

                                                                



of itself was insufficient to show that the superior court had violated his due process  

                    

rights in failing to appoint one.21  



                   Earl's motion for appointment of counsel makes clear that none of the  



categories for which we have required appointment of counsel apply.  We next consider  

                                                                                                  



the  due  process  analysis.    Barber  and  Earl  complain  of  the  Department's  policies  



regarding gaming systems and restrictions on mature-rated video games.  They argue that  



                                                                                                    

these policies pertain to their economic interests (e.g., the possession of property).  Thus  



Midgett   is  dispositive:  These  economic  interests  are  insufficient  to  require  the  



appointment of counsel as a matter of due process.  



                   The  appointment  of  counsel  in  this  context  is  not  required  by  our  



                                                            

jurisprudence, and thus the superior court did not abuse its discretion in denying Earl's  



motion.  



          C                                   

            .      It Was Error To Dismiss The Prisoners' Complaint For Failure To  

                   State A Claim Upon Which Relief Can Be Granted.  



                                                  

                   Alaska Rule of Civil Procedure 12(b)(6) provides for a motion to dismiss  



          19       Mathews , 424 U.S. at 335.  



          20       Midgett , 53 P.3d at 1111-12.  



          21       Id . at 1112.  



                                                           -8-                                                    7026
  


----------------------- Page 9-----------------------

if the complaint "fail[s] . . . to state a claim upon which relief can be granted."  In order  

                                                                                                                    



for the non-moving party to survive this motion "it is enough that the complaint set forth  

                                                                                                    



allegations  of  fact  consistent  with  and  appropriate  to  some  enforceable  cause  of  



                                                                                                            

action. . . .  The court must presume all factual allegations of the complaint to be true and  

[make] all reasonable inferences . . . in favor of the non-moving party."22  



                   We have previously considered Civil Rule 12(b)(6) motions to dismiss with  



                                                  23  

specific regard to pro se prisoners.                  In Larson v. State , Department of Corrections , we  



emphasized the standard quoted above, reiterating that "a complaint must be liberally  

                                                            



construed" and a "motion to dismiss under Rule 12(b)(6) is viewed with disfavor and  



                                      24  

should rarely be granted."                We further held that a complaint should not be dismissed  



" 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support  

of his claim' that would entitle him to some form of relief."25  



                                                                              

                    The superior court ruled that there were no claims in the case that were not  



class-action claims.  But there were six plaintiffs individually named on the complaint  



                                                                                           

filed in superior court. The named plaintiffs, including Barber and Earl, sought to assert  



claims "on behalf of themselves" and other Alaska prisoners allegedly affected by the  



                                                                                        

Department's policy changes and to challenge the substance of those changes.  All of the  



                                               

plaintiffs signed the complaint. We construe the statement that the named plaintiffs were  



                                                                                                        

asserting claims "on behalf of themselves" as meaning they each were asserting claims  



          22        Caudle v. Mendel, 994 P.2d 372, 374 (Alaska 1999)                          (alteration and second  



omission  in  original)  (quoting  Kollodge  v.  State ,  757  P.2d  1024,  1025-26  n.4  

(Alaska 1988)).  



          23       Larson v. State, Dep't of Corr. , 284 P.3d 1, 3-5 (Alaska 2012).  



          24       Id . at 6 (internal quotation marks omitted).  



          25       Id .  (quoting  Guerrero  v.  Alaska  Hous.  Fin.  Corp.,  6  P.3d  250,  254  



(Alaska 2000)).  



                                                             -9-                                                       7026
  


----------------------- Page 10-----------------------

                                                          

in their individual capacity.  They also sought to assert claims on behalf of "all other  



                                             

persons who are now or will be similarly situated":  this phrase is the basis for the  



prisoners' effort to bring a class action.  



                   Taking  the  allegations  in  the  complaint  as  true  -  as  we  must  when  



                                                                                  26  

                                                                                          

evaluating a motion to dismiss for failure to state a claim                          - the Department's policy  



                                                    

changes apply to all of the named  plaintiffs similarly.  The named plaintiffs in their  



                                                          

individual capacities may be entitled to individual relief.  We therefore conclude that it  



        

was error for the superior court to dismiss the case on the grounds that no individual  

claims were stated in the complaint.27  



V.        CONCLUSION  



                   We  AFFIRM  the  superior  court's  denial  of  Earl's  motion  for  class  



certification.  We also AFFIRM the court's denial of Earl's motion for appointment of  



                                                      

counsel.  We REVERSE the court's dismissal of the prisoners' complaint for failure to  



state a claim upon which relief can be granted and REMAND for further proceedings  



consistent with this opinion.  



          26       Id. ("The complaint must be liberally construed and we treat all factual  



allegations as true.").  



          27       Barber          also       complains            about        the       constitutionality              of  



Department Policy 810.03, which limits the amount of mail he can send each week at   

state  expense.     Because  we  are  remanding   these   consolidated  cases  for  further  

proceedings, Barber can raise this issue in the superior court.  We note that we have  

already ordered the Department to pay the  cost  of  mailing Barber's legal mail with  

                                                                             

respect to this case so long as he remains indigent.  See Barber v. Schmidt , No. S-15141  

                                                                                          

(Alaska Supreme Court Order, Aug. 22, 2013).  



                                                           -10-                                                      7026
  

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