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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    


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-----------------------


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  


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


                   Bolger, Justices.  

                   STOWERS, Justice.  


                   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  



          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.  



                    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.  



                    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.  


                                                                                                                       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  


                                                             -4-                                                       7026

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


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  


          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).  



                   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-----------------------



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  



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  


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  


                                              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  


                                                                            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  


                                                  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  



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


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


                                                                                  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  



            .      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  


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  


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  



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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