Palladeno v. Mohr et al

Filing 7

ORDER AND REPORT AND RECOMMENDATIONS. Plaintiff's in forma pauperis Motion (Doc. 1 ) and Motion to Seal (Doc. 4 ) are GRANTED, and his Motion to Appoint Counsel (Doc. 6 ) is DENIED. It is also RECOMMENDED that all plaintiffs other than Plaint iff himself be dismissed from this action, and Plaintiff's Motion to Certify Class (Doc. 3 ) and Motion for Preliminary Injunction and Prisoner Release Orders (Doc. 5 ) be DENIED. Plaintiff is DIRECTED leave to file an amended complaint within 30 days of this Order. Signed by Magistrate Judge Kimberly A. Jolson on 11/30/2016. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TED PALLADENO, et al.,
Plaintiffs,
v.

Civil Action 2:16-cv-1126
Judge Michael H. Watson
Magistrate Judge Jolson

GARY C. MOHR, et al.,
Defendants.
REPORT AND RECOMMENDATION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Leave to Proceed in forma
pauperis (Doc. 1), Motion To Certify Class (Doc. 3), Motion to File Portions of the Complaint
Under Seal (Doc. 4), Motion for Preliminary Injunction and Prisoner Release Orders (Doc. 5),
and Motion to Appoint Counsel (Doc. 6). In addition, this matter is before the undersigned for
an initial screen pursuant to 28 U.S.C. § 1915A(a). For the foregoing reasons, Plaintiff’s in
forma pauperis Motion (Doc. 1) and Motion to Seal (Doc. 4) are GRANTED, and his Motion to
Appoint Counsel (Doc. 6) is DENIED. It is also RECOMMENDED that all plaintiffs other
than Plaintiff himself be dismissed from this action, and Plaintiff’s Motion to Certify Class (Doc.
3) and Motion for Preliminary Injunction and Prisoner Release Orders (Doc. 5) be DENIED.
Finally, the Plaintiff is DIRECTED leave to file an amended complaint within 30 days of this
Order.
I.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Plaintiff’s Motion for Leave to Proceed in forma pauperis under 28 U.S.C. § 1915(a) is

GRANTED. (Doc. 1). Plaintiff is assessed the full amount of the Court’s $350.00 filing fee. 28
U.S.C. § 1915(b)(1).

Plaintiff’s supporting documents reveal that he currently possesses an insufficient amount
to pay the full filing fee. The custodian of Plaintiff’s inmate trust account at the institution of his
residence is DIRECTED to submit to the Clerk of the United States District Court for the
Southern District of Ohio, as an initial partial payment, 20% of the greater of either the average
monthly deposits to the inmate trust account or the average monthly balance in the inmate trust
account for the six (6) months immediately preceding the filing of the complaint. If Plaintiff
does not currently possess the funds to pay the initial filing fee, the amount assessed shall be
collected from Plaintiff’s account when such funds become available.

See 28 U.S.C.

§ 1915(b)(4) (“In no event shall a prisoner be prohibited from bring a civil action . . . for the
reason that the prisoner has no assets and no means by which to pay the initial partial filing
fee.”).
Once the initial partial filing fee is paid, the custodian shall submit 20% of the inmate’s
preceding monthly income credited to the account if, during that month, the balance of that
account exceeds $10.00, until the full fee of $350.00 has been paid. 28 U.S.C. § 1915(b)(2). If
Plaintiff is transferred to another prison, the custodian should forward this Order to that
institution so that the new custodian of Plaintiff’s account can collect and remit the monthly
partial payment.
Checks are to be made payable to:
Clerk, U.S. District Court
Checks are to be sent to:
Prisoner Accounts Receivable
Joseph P. Kinneary United States Courthouse
Room 121
85 Marconi Blvd.
Columbus, OH 43215

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The prisoner’s name and case number must be noted on each remittance.
Accordingly, it is ORDERED that Plaintiff be allowed to prosecute his action without
prepayment of fees or costs and that judicial officers who render services in this action shall do
so as if the costs had been prepaid.
The Clerk of Court is DIRECTED to mail a copy of this Order to the Plaintiff and the
prison cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the
Court’s financial office in Columbus.
II.

INITIAL SCREEN, MOTION TO CERTIFY CLASS, AND MOTION FOR
PRELIMINARY INJUNCTION
Because Plaintiff, a prisoner, seeks redress from a governmental entity or officer or

employee of a governmental entity, this Court must conduct an initial screen of the complaint.
28 U.S.C. § 1915A(a). The Court must dismiss the complaint, “or any portion of the complaint,”
if it determines that the complaint or claim is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. §§ 1915(e)(2), 1915A(b).
The Court is unable to address the merits of Plaintiff’s individualized claim because he
attempts to bring this case as a class action. The Sixth Circuit has made clear that prisoners
proceeding pro se may not represent other prisoners in federal court. Marr v. Michigan, No. 951794, 1996 WL 205582, at *1 (6th Cir. Apr. 25, 1996) (stating that “an imprisoned litigant who
is not represented by counsel may not represent a class of inmates because the prisoner cannot
adequately represent the interests of the class”); see also Palasty v. Hawk, 15 F. App’x 197, 200
(6th Cir. 2001) (affirming district court’s refusal to certify a class action proposed by a pro se
plaintiff inmate because “pro se prisoners are not able to represent fairly the class”); Corn v.
Sparkman, No. 95-5494. 1996 WL 185753, at *1 (6th Cir. Apr. 17, 1996) (“A prisoner cannot
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bring claims on behalf of other prisoners.”); Proctor v. Applegate, No. 07-12414, 2008 WL
2478331, n.3 (E.D. Mich. June 16, 2008) (“It is well-established that plaintiff Proctor may only
represent himself with respect to his individual claims, and may not act on behalf of other
prisoners.”).
Thus, Plaintiff may pursue only his individualized claim in this case. Therefore, it is
RECOMMENDED that all purported plaintiffs, other than Plaintiff Ted Palladeno, be
DISMISSED from this action. For the same reason, it is RECOMMENDED that Plaintiff’s
Motion to Certify Class (Doc. 3) and Motion for Preliminary Injunctions and Prisoner Release
Orders be DENIED (Doc. 5).
III.

MOTION TO APPOINT COUNSEL
Plaintiff has also filed a Motion to Appoint Counsel. Since this action has not yet

progressed to the point that the Court is able to evaluate the merits of Plaintiff’s claim, see Henry
v. City of Detroit Manpower Dep’t, 763 F.2d 757, 760 (6th Cir. 1985), the Motion to Appoint
Counsel is DENIED. (Doc. 6).
IV.

MOTION TO SEAL
Plaintiff has also filed a Motion to Seal. The Court finds that a seal is appropriate given

that the complaint, as filed, is not permitted to proceed on behalf of anyone other than Plaintiff,
and much of the complaint pertains to other individuals. Plaintiff’s amended complaint, when it
is filed and contains only his claims, shall be part of the public record. Thus, the Motion to Seal
is GRANTED. (Doc. 4).
V.

PLAINTIFF’S AMENDED COMPLAINT
Because the class allegations in the complaint are pervasive, the Court is unable to

decipher Plaintiff’s individualized claim. As such, Plaintiff is hereby DIRECTED to file an

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amended complaint consistent with this Order. Pursuant to Rule 8 of the Federal Rules of Civil
Procedure, that complaint must contain a short and plain statement of the grounds for the court’s
jurisdiction, a short and plain statement of the claim showing that the pleader is entitled to relief,
and a demand for the relief sought, which may include relief in the alternative or different types
of relief. The amended complaint must be filed within 30 days or this case may be dismissed.
This Court shall conduct an initial screening of Plaintiff’s individualized claim upon receipt of
the amended complaint. If this matter proceeds, the Court shall then direct service of summons
and complaint on Defendants.
Procedure on Objections to Report and Recommendation
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).

A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.
§ 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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Procedure on Objections to Order
Any party may, within fourteen days after this Order is filed, file and serve on the
opposing party a motion for reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A), Rule
72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt. I., F., 5.

The motion must

specifically designate the order or part in question and the basis for any objection. Responses to
objections are due fourteen days after objections are filed and replies by the objecting party are
due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside
any part of this Order found to be clearly erroneous or contrary to law.
This Order is in full force and effect, notwithstanding the filing of any objections, unless
stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.
IT IS SO ORDERED.

Date: November 30, 2016

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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