MANSO et al v. LANIGAN et al

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 10/1/2013. (bdk, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
Plaintiffs,
:
:
v.
:
:
COMMISSIONER GARY M. LANIGAN :
et al.,
:
:
Defendants.
:
:
LUIS MANSO et al.,

Civil Action No. 13-3226 (RMB)
OPINION

BUMB, District Judge:
This matter comes before the Court upon submission of a
civil complaint (“Complaint”) executed by four plaintiffs,
namely, Luis Manso (“Manso”), Ricky Salaam (“Salaam”), Gary
Harris (“Harris”) and Jamaal Waliyuallah (“Waliyuallah”,
hereinafter, collectively, “Plaintiffs”), who are convicted
prisoners confined at the South Woods State Prison (“SWSP”),
Bridgeton, New Jersey.

See Docket Entry No. 1, at 3-4.

Plaintiffs are seeking to litigate this matter as a class action.
See id. at 7.

The Complaint arrived unaccompanied by Plaintiffs’

filing fee or by their applications to proceed in this matter in
forma pauperis.

See, generally, Docket.

Plaintiffs named, as defendants, various top supervising
officers of the New Jersey Department of Corrections (“DOC”) and
supervising DOC officers employed at the SWSP.

See Docket Entry

No. 1, at 4-6.
Plaintiffs asserted a vide range of challenges implicating
different clauses of First, Eighth and Fourteenth Amendments and
raised allegations on behalf of those SWSP inmates whom
Plaintiffs qualified as “Muslim” and with regard to whom
Plaintiffs broadly outlined certain events that allegedly
transpired in 2010, 2011 and 2012.

See id. at 7-14.

However,

these allegations did not detail any specific facts or specific
wrongdoers who were personally involved in the deprivations, or
the specific acts of those wrongdoers, or the specific injuries
Plaintiffs suffered personally, etc.

The Complaint indicates

that Plaintiffs seek class certification and compensatory
damages, per each member in the amount of $200 per each day when
that class member was subjected to at least one of the alleged
deprivations, $300 in punitive damages per each member per each
such day, expungement of each class member’s records as to his
gang membership affiliation, etc.

See id. at 18-20.

While the Complaint is drafted in the style inviting the
reader to assume that each Plaintiff executed this pleading, the
signature block and various exhibits (styled as an application
for a temporary restraining order) indicate that the entire
package was produced and submitted solely by Manso.
Entry No. 1, at 20; Docket Entry No. 1-1.

See Docket

Hence, the Court

cannot establish with any measurable degree of certainty that

2

Harris, Salaam and Waliyuallah are aware of this submission.
I.

In Forma Pauperis
The filing fee for a civil complaint is $350.00.

The Clerk

cannot file a civil complaint unless the person seeking relief
either prepays the entire $400 filing fee or applies for and is
granted in forma pauperis status under 28 U.S.C. § 1915.1
Local Civil R. 5.1(f).

See

The Prison Litigation Reform Act of 1995,

Pub. L. No. 104-135, 110 Stat. 1321 (April 26, 1996) (“PLRA”),
which amended 28 U.S.C. § 1915, established certain financial
requirements for prisoners who are attempting to bring a civil
action or file an appeal in forma pauperis.2
1

Effective on May 1, 2013, the entire fee to be paid in
advance of filing a civil complaint is $400. That fee includes a
filing fee of $350 plus an administrative fee of $50, for a total
of $400. However, a prisoner who is granted in forma pauperis
status is assessed incremental collections of only the filing fee
in the amount of $350 and is not responsible for the $50
administrative fee. In contrast, a prisoner who is denied in
forma pauperis status must pay the full $400, that is, the $350
filing fee and the $50 administrative fee before the complaint is
filed. Since Plaintiffs’ Complaint was executed on May 10,
20133, See Docket Entry No. 1, at 20, the Complaint could not
have been submitted prior to that date. Therefore, the fee to be
paid in advance by each Plaintiff would necessarily be $400 if
each is denied in forma pauperis status.
2

Under the PLRA, a prisoner seeking to bring a civil action
in forma pauperis must submit an affidavit, including a statement
of all assets, which states that the prisoner is unable to pay
the fee. See 28 U.S.C. § 1915(a)(1). The prisoner also must
submit a certified copy of his inmate trust fund account
statement for the six-month period immediately preceding the
filing of his complaint. See 28 U.S.C. § 1915(a)(2). The
prisoner must obtain this certified statement from the
appropriate official of each prison at which he was or is
confined during that period. See id.
3

Here, this Court cannot grant Plaintiffs in forma pauperis
because they did not submit the required applications.

Thus,

they will be denied in forma pauperis status without prejudice.3

II.

Class Certification
Class certification is governed by Rule 23 of the Federal

Rules of Civil Procedure.

An action cannot proceed as a class

matter unless all prerequisites set forth in Rule 23(a) and (b)
are satisfied.

See Fed. R. Civ. P. 23(c).

Class certification

is premature until the complaint is screened and filed under 28
U.S.C. §§ 1915(e)(2)(B) and 1915A, the pleading is ordered served
and appointment of pro bono counsel, if warranted, is directed.4
3

Plaintiffs shall take notice of Rule 20 of the Federal
Rules of Civil Procedure, which governs permissive joinder of
plaintiffs. Where more than one prisoner seeks to join in a
complaint against a government official or entity, the prisoners
may prepay a single $400 filing fee or each prisoner must seek
and obtain in forma pauperis status. In the latter scenario, the
Court must direct a $350 assessment against each prisoner. See
id. at 150. The Court is also obligated to screen the complaint
and dismiss any claim that is frivolous, malicious or fails to
state a claim upon which relief may be granted, or seeks monetary
relief from an immune defendant. See 28 U.S.C. § 1915A. If a
prisoner has, on three or more occasions while incarcerated,
brought an action or appeal in a federal court that was dismissed
on the aforesaid grounds, the prisoner may not bring another
action in forma pauperis unless he is in imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g); see also Byrd
v. Shannon, 709 F.3d 211, aff’d upon rehearing 715 F.3d 117 (3d
Cir. 2013) (strikes are accrued regardless of whether the
prisoner prepaid the filing fee or proceeded in forma pauperis).
4

The Court may appoint pro bono counsel only if all class
representatives obtain in forma pauperis status. See 28 U.S.C. §
1915(e)(1); Local Civil Rules, Appendix H.
4

See Hagan v. Rogers, 570 F.3d 146, 159 (3d Cir. 2009); Link v.
Mercedes-Benz of North America, Inc., 550 F. 2d 860, 864 (3d Cir.
1976).

A party seeking class certification bears the burden of

proving that the putative class satisfies all requirements of
Rule 23.5

See Johnston v. HBO Film Mgmt., Inc., 265 F.3d 178,

183-84 (3d Cir. 2001); see also Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 613-14 (1997).
Pursuant to Rule 23:
One or more members of a class may sue or be sued as
representative parties on behalf of all members only
if:
(1)
(2)
(3)
(4)

the class is so numerous that joinder of all
members is impracticable;
there are questions of law or fact common to the
class;
the claims or defenses of the representative
parties are typical of the claims or defenses of
the class; and
the representative parties will fairly and
adequately protect the interests of the class.[6]

Fed. R. Civ. P. 23(a).
Usually referred to as numerosity, commonality, typicality,
and adequate representation, these requirements are “meant to

5

The Court of Appeals has recognized the utility, and often
the necessity, of looking beyond the pleadings at the class
certification state of litigation. See Newton v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 259 F.3d 154, 168-69 (2001) (“In
reviewing a motion for class certification, a preliminary inquiry
into the merits is sometimes necessary to determine whether the
alleged claims can be properly resolved as a class action”).
6

The possibility of having counsel appointed is not a
substitute for the adequacy of the class representative.
5

assure both that class action treatment is necessary and
efficient and that it is fair to the absentees under the
particular circumstances.”

Baby Neal by Kanter v. Casey, 43 F.3d

48, 55 (3d Cir. 1994).
“Numerosity requires a finding that the putative class is so
numerous that joinder of all members is impracticable.”
259 F.3d at 182; Fed. R. Civ. P. 23(a)(1).

Newton,

“No single magic

number exists satisfying the numerosity requirement.”
v. Lopp, 128 F.R.D. 624, 628 (E.D. Pa. 1989).

Moskowitz,

The Court of

Appeals, however, generally has approved only classes of forty or
more.

See Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir.

2001).

Here, Plaintiffs’ putative class of unspecified number of

inmates whom Plaintiffs’ qualify as “Muslim” inmates whose
rights, in Plaintiffs’ opinion, were violated, fails to satisfy
the numerosity requirement.7
To satisfy the commonality requirement, Plaintiffs

must

show the existence of at least one question of law or fact common
to the entire class.

See Johnston, 265 F.3d at 184; see also In

re the Prudential Ins. Co. of Am. Sales Practices Litig., 148
F.3d 283, 310 (3d Cir. 1998).

“All that is required is that the

litigation involve some common questions and that plaintiffs
allege harm under the same legal theory.”

7

Baby Neal, 43 F.3d at

Moreover, the Complaint and exhibits suggest that
Plaintiffs’ “class” might be limited solely to the four of them
or only to Manso, individually.
6

58.

Here, Plaintiffs allege a multitide of various legal

theories, and their Complaint offers this Court no assurances
that any of these theories applies to each Plaintiff, moreover
each member of the putative class.

Therefore, the commonality

requirement also appears unsatisfied.
Furthermore, while the typicality requirement may be met
despite the existence of some differences between the claims of
the named plaintiffs and the claims of the proposed class, see
Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir. 1985), this
requirement is designed to align the interests of the class and
the class representatives so that the latter will work for the
benefit of the entire class through the pursuit of their own
goals.

See In re Prudential Ins. Company of America, 148 F.3d

283, 311 (3d Cir. 1998); see also Hoxworth v. Blinder, Robinson &
Co., Inc., 980 F.2d 912, 923 (3d Cir. 1992).

Here, Plaintiffs

assert a broad range of challenges but do not indicate the
specific wrong each Plaintiff was exposed to or the harm each
Plaintiff suffered.

Since this broad range of Plaintiffs’ claims

and, especially, their unique perception of which inmate should
qualify as a “Muslim” prisoner whose rights were violated offer
this Court no reason to conclude that each Plaintiffs’ claims are
typical to and aligned with the entire class, Plaintiffs did not
meet the typicality requirement.
Rule 23 also requires that “the representative parties will

7

fairly and adequately protect the interests of the class.”
R. Civ. P. 23(a)(4).

Fed.

However, where the class includes members

with divergent interests because the time of class membership is
a factor, the representatives may not adequately represent the
class throughout the entire life of the litigation.

See Bogosian

v. Gulf Oil Corp., 561 F.2d 434, 449 (3d Cir. 1977); Miller v.
Hygrade Food Prods. Corp., 198 F.R.D. 638 (E.D. Pa. 2001); see
also Wetzel v. Liberty Mut., Ins. Co., 508 F.2d 239 (3d Cir.
1975).

Here, however, Plaintiffs’ terms differ dramatically.

For instance, the DOC records show that Salaam is serving a life
sentence without parole, Manso is scheduled for a parole review
on July 25, 2058, Harris is either scheduled for parole hearing
on June 25, 2015 or will be released in 2020,8 while Waliyuallah
is not listed in the DOC records at all, which might indicate
that Waliyuallah is merely a pre-trial detainee.

See https://

www6.state.nj.us/DOC_Inmate/details?x=1027404&n=0;

https://www6.

state.nj.us/DOC_Inmate/details?x=1066025&n=0; https://www6.state.
nj.us/DOC_Inmate/details?x=1405606&n=1; https://www6.state.nj.us/
DOC_Inmate/details?x=1066025&n=0.

Thus, the Court cannot find

that the adequacy requirement is satisfied.
In addition to satisfying Rule 23(a), Plaintiffs must also

8

Since Manso did not designate Harris’ SBI Number in the
Complaint, and there are two inmates named “Gary Harris” held at
the SWSP, the Court cannot determine which of these two Harris
inmates is the Harris listed among Plaintiffs in this action.
8

show that the putative class falls under at least one of the
three subsections of Rule 23(b).

Since the putative class here

seeks money damages, Plaintiffs must satisfy the requirements of
Rule 23(b)(3) by establishing both predominance and superiority.9
See Grider v. Keystone Health Plan Cent., Inc., 2006 U.S. Dist.
LEXIS 93085, at *36 (E.D. Pa. Dec. 21, 2006).
The predominance requirement of Rule 23(b) is even more
rigorous than the commonality requirement of Rule 23(a).

See

McMahon Books, Inc. v. Willow Grove Assocs., 108 F.R.D. 32, 35
(E.D. Pa. 1985).

The Supreme Court observed that, while

“[p]redominance is a test readily met in certain cases alleging
consumer or securities fraud[, certification of a class should be
made with] caution where individual stakes are high and
disparities among class members great.”

Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 625 (1997) see also Windham v. Am. Brands,
Inc., 565 F.2d 59, 68 (4th Cir. 1977) (“[W]here the issue of
damages and impact . . . requires separate minitrials . . . the
staggering problems of logistics . . . make the damage aspect . .
. predominate, and render the case unmanageable as a class

9

Class action is less favored where plaintiffs seek
monetary damages, because any award of damages requires
case-by-case examination of individual claims, a process best
suited to individual adjudications rather than class action
lawsuits. See Contawe v. Crescent Heights of Am., Inc., 2004
U.S. Dist. LEXIS 25746 (E.D. Pa. Dec. 21, 2004).
9

action”) (internal citations omitted).10

Here, the requirement

of predominance and superiority are not met in light of the broad
range of vaguely outlined challenges stated in the Complaint and
Manso’s exhibits focusing exclusively on his desire to receive
“hot breakfasts” and “normal lunches” instead of the cold
breakfasts and lunches consisting of peanut butter and jelly
sandwiches.

Correspondingly, Plaintiffs’ application for class

certification is without merit and will be denied.
III. Substantive Deficiencies
The Supreme Court detailed the standard for summary
dismissal of a complaint in Ashcroft v. Iqbal, 556 U.S. 662
(2009).

The Court examined Rule 8(a)(2) of the Federal Rules of

Civil Procedure which provides that a complaint must contain “a
short and plain statement of the claim showing that the pleader
is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

The Supreme

Court held that, to prevent a summary dismissal, a civil
complaint must now allege “sufficient factual matter” to show
that the claim is facially plausible since that “allows the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.”

Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir. 2009) (citation omitted).
10

In addition, the requirement that a class action be the
superior method of resolving the claims ensures that there is no
other available method of handling it which has greater practical
advantages. See Fed. R. Civ. P. 23, Advisory Committee Note,
1966 Amendment to 23(b)(3); Johnston, 265 F.3d at 194.
10

Here, Plaintiffs named, as Defendants, various supervising
DOC officers with regard to whom Plaintiffs fail to assert facts
showing these officers’ personal involvement in any alleged
wrongs or these officers’ causing any injuries Plaintiffs
suffered as a result of those allegedly wrongful acts.
stated, Plaintiffs’ claims are facially meritless.

Thus, as

See, e.g.,

Iqbal, 556 U.S. at 676 (recognizing that vicarious liability is
inapplicable to § 1983 suits); Monell, 436 U.S. 658, 692 (1978)
(analyzing the statutory history and language of § 1983 and
explaining why respondeat superior liability is not allowed).
Correspondingly, in the event Plaintiffs elect to file their
respective amended pleadings, each Plaintiff shall assert his
individual challenges by: (a) detailing the facts, if any,
underlying his actual injuries; and (b) naming the individual
defendants liable for the wrongs Plaintiff allegedly suffered.
IV.

Conclusion
For the foregoing reasons, Plaintiffs’ application for class

certification will be denied.

Plaintiffs’ application to proceed

in forma pauperis, if such application was implied in the
submission at bar, will be denied without prejudice to seeking
the same individually in connection with the new and separate
matters opened by the Clerk for each Plaintiff.

The Complaint

will be dismissed without prejudice to each Plaintiff’s filing of

11

his individual amended pleading in his new action.11
An appropriate Order follows this Opinion.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: October 1, 2013

11

The instant matter will be reserved for the first-listed
Plaintiff, Manso. Therefore, in the event Manso elects to submit
his amended pleading, he should do so in the instant matter.
12