Schwartzenhauer et al v. Hillsborough County, NH et al.

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Robbin T. Schwartzenhauer et al.!

V. Civil No. 23-cv-506-JL-TSM

Hillsborough County and Hillsborough
County Department of Corrections

REPORT AND RECOMMENDATION

Before the court is the Complaint (Doc. No. 1) signed by thirty-three pretrial detainees
and/or prisoners at the Hillsborough County Department of Corrections (“HCDOC’”) Valley Street
Jail in October 2023 and November 2023. Plaintiffs assert that the conditions at the Valley Street
Jail have violated their rights to humane conditions of confinement under the U.S. Constitution
and the U.N. Declaration of Human Rights. Plaintiffs, appearing here without counsel,” seek to
have their case certified as a class action, on behalf of all people incarcerated at the HCDOC Valley
Street Jail at any time in 2023. Also before the court is the motion to proceed in forma pauperis
(Doc. No. 2), signed by two of the plaintiffs, Grant. DeGiacomo and Robbin T. Schwartzenhauer,
who intend to be the lead plaintiffs in this action.

This matter has been referred to the magistrate judge to conduct a preliminary review,

' The plaintiffs who signed the Complaint (Doc. No. 1) are Jason Peloquin; Justis A. Lugo; Cesar
Medina Moreles; John Delee; Shawn Robinson; Ramon Dejesus; Grant J. DeGiacomo; Robbin T.
Schwartzenhauer; Thomas “LNU” (whose last name is unknown orillegible); Lincoln LNU; Cody
Lavallee; Jon Schiavone; Jose Ramirez; Jose Perez; Ricardo Velazquez; Muhsin Mohamed;
Ezquiel Polanco; Michael Kittredge; Atiba T. Moore; Keith Beal; Nick Simons; Calen Kutrubes;
Justin Nagy; Lavaughn Bamett; Ryan Labrecque; Ashton Bell; David Madol; Nicholas (Acevedo)
LNU; Calvin DeGreenia; Victor Chamorro; Richard Potts; Christian Morales; and Brandon Ross.

* The motion for appointment of counsel (Doc. No. 3) filed by Mr. DiGiacomo and Mr.
Schwartzenhauer is the subject of an Order issued this date.

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pursuant to 28 U.S.C. § 1915A; LR 4.3(d)(1). That review is pending and may include
consideration of whether the claims or parties in this action should be dismissed, dropped, or
severed for reasons including a failure to state a claim upon which relief may be granted or
misjoinder.3 As this case involves multiple pro se plaintiffs requesting class certification, only two
of whom have specifically asked for leave to proceed in forma pauperis in this action, the court
subjects the instant complaint to a pre-screening to determine whether class certification is
appropriate, and whether and how the filing fee may be paid, apportioned, waived or deferred.
For reasons stated below, the undersigned magistrate judge recommends that the district judge
deny the request for class certification in the complaint (Doc. No. 1) without prejudice and deny
the motion seeking leave to proceed in forma pauperis (Doc. No. 2) without prejudice.
Background
The thirty-three named plaintiffs are pretrial detainees or convicted prisoners at the
HCDOC’s Valley Street Jail in 2023. Each of them signed the complaint (Doc. No. 1) individually
in late October or early November 2023, and then filed it, initiating this action without counsel.
These pro se plaintiffs assert claims of violations of their federal rights, which this court liberally
interprets as seeking relief under 42 U.S.C. § 1983, against the defendants, Hillsborough County
(“County”) and its agency, the HCDOC.
3 See generally LR 4.3(d); see also Fed. R. Civ. P. 21 (“On motion or on its own, the court may at
any time, on just terms, add or drop a party. The court may also sever any claim against a party.”);
Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 683 (7th Cir. 2012) (district judges
“should be able to spot a complaint” with misjoined claims “within days of its filing,” and then
“solve the problem by severance (creating multiple suits that can be separately screened))”.
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The Complaint lists the conditions that the plaintiffs claim violate their rights. First, they
assert that skin rashes are prevalent, and they complain that their bedding is changed only once
every three months. They assert that the air temperature in the jail fluctuates and that they receive
only two sets of clothes and a single blanket, which they assert is insufficient to stay warm or
comfortable.
They assert that bad breath and tooth decay are common conditions among the population
at the Valley Street Jail. They complain that the mouthwash in the commissary is not anti-septic,
and they lack free dental floss.
They further assert claims about their meals. They do not know the ingredients in their
meals, and they cannot choose what is served or provide feedback to the kitchen. Their meals may
include vegetables but no fresh salads, white bread but no whole grain alternative, and an apple
occasionally but no daily serving of fresh seasonal fruits, fresh-brewed coffee, or 100% pure
orange juice.
They assert that the tap water is unfiltered. They claim that when they ran tap water through
an N-95 filter for an hour, a dark brown residue of an unknown nature appeared on the filter.
The plaintiffs further assert that new inmates at the jail do not receive adequate orientation
regarding facility resources and policies. And while they acknowledge that HCDOC inmates may
receive electronic devices or tablets at the Valley Street Jail, they allege that the content is limited
and not free. Movies, games, and TV cost $0.05 per minute, and phone calls cost $0.20 per minute.
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In their prayer for relief (Doc. No. 1), plaintiffs ask for declaratory and injunctive relief,4
and they seek to have their case certified as a class action.
Discussion
I. Class Certification
The thirty-three plaintiffs seek to bring this action on behalf of “all inmates” of the Valley
Street Jail, including those presently at the facility and those who have been incarcerated there at
any time, pre or post trial, during 2023. Compl. (Doc. No. 1), at 15. The proposed class consists
of hundreds of men and women.5
A Rule 23 class action is an action in which “[o]ne or more members of a class” are
authorized to sue “as representative parties on behalf of all [class] members.” Fed. R. Civ. P. 23.
To qualify as a class action under Rule 23, a case must have the following characteristics: (1) too
many plaintiffs to join through a typical joinder motion (“numerosity”), (2) certain common factual
or legal issues shared by each member of the class (“commonality”), (3) a named plaintiff whose
claim is typical of the claims of the unnamed plaintiffs (“typicality”), and (4) a named plaintiff
who is an adequate representative of the unnamed plaintiffs’ interests (“adequacy”). Fed. R. Civ.
P. 23(a); Amchem Prods ., Inc. v. Windsor, 521 U.S. 591, 613 (1997). A case cannot proceed as
a class action unless it is certified as such by the court. Fed. R. Civ. P. 23(c)(1).
4 Although plaintiffs have requested injunctive relief in their prayer for relief, they have not filed
a motion asking the court to order a preliminary injunction. See Fed. R. Civ. P. 7(b), 65; LR 7.1,
65.1.
5 HCDOC’s census on November 15, 2023 included 322 inmates at the Valley Street Jail, of which
85% were in pretrial detention. See Hillsborough Cty. Bd. of Comm’rs Mtg. Mins., Nov. 15, 2023,
http://hcnh.org/Home/Meeting-Minutes (last accessed Dec. 6, 2023).
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“As a general rule . . . an individual appearing pro se may not represent other individuals
in federal court, see 28 U.S.C. § 1654, and courts have routinely denied a prisoner’s request to
represent a class of prisoners without the assistance of counsel.” Vazquez v. Fed. Bureau of
Prisons, 999 F. Supp. 2d 174, 177 (D.D.C. 2013) (citing cases). “[I]t is generally not an abuse of
discretion for a district court to deny a motion for class certification on the ground that a pro se
litigant is not an adequate class representative.” Howard v. Pollard, 814 F.3d 476, 478 (7th Cir.
2015) (emphasis in original).
Each plaintiff who signed the complaint (Doc. No. 1) is appearing pro se in this action, and
none of them is an attorney admitted to the Bar of this court. Those pro se plaintiffs cannot
adequately represent the interests of the hundreds of men and women in the class they have
identified. Accordingly, the district judge should deny the request for class certification, without
prejudice to plaintiffs’ ability to refile a similar request through any counsel who appears on their
behalf.
II. Filing Fee
Prisoners and pretrial detainees who file lawsuits in federal court must pay a single filing
fee for each case they file, either up front or over time, pursuant to 28 U.S.C. § 1915(b). The court
may not take any further action in this case, and the case may be dismissed, if the single filing fee
is not paid by one or more of the plaintiffs in this case, unless the court grants each of the plaintiffs
permission to pay the fee over time, in the manner specified by law. See LR 4.4; see also 28 U.S.C.
§ 1915(b).
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No party here has paid the filing fee up front. Two of the named plaintiffs, Mr. DeGiacomo
and Mr. Schwartzenhauer, have filed a motion asking for leave to file the action without paying
any filing fee (Doc. No. 2), but none of the remaining plaintiffs have filed similar motions.
Mr. DeGiacomo’s and Mr. Schwartzenhauer’s request to avoid having to pay the filing fee
at all is not consistent with the requirements of 28 U.S.C. § 1915(b). Their motion lacks the
information required by law, see generally id. Accordingly, the district judge should deny their
motion to proceed in forma pauperis (Doc. No. 2), without prejudice to the ability of each plaintiff
to file a complete application to proceed without prepayment of fees or costs, as directed in the
Order issued this date.
Conclusion
For the foregoing reasons, the magistrate judge recommends that:
1. The district judge should DENY the request for class certification in the
complaint (Doc. No. 1) without prejudice; and
2. The district judge should DENY the motion seeking leave to proceed in
forma pauperis (Doc. No. 2) in this case, without prejudice.
Any objections to this Report and Recommendation must be filed within fourteen days of
receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The objection period may be extended upon
motion. Only those issues raised in the written objections “‘are subject to review in the district
court,’” and any issues “‘not preserved by such objection are precluded on appeal.’” Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016) (citations omitted).
__________________________
Talesha L. Saint-Marc
United States Magistrate Judge
December 12, 2023
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cc: plaintiffs of record