Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Davis Willis Mugimu
v. Civil No. 24-cv-21-SE-AJ
U.S. Immigration and Customs Enforcement
and Strafford County Department of Corrections
Superintendent Christopher Brackett1
REPORT AND RECOMMENDATION
Davis Willis Mugimu filed his petition for a writ of habeas
corpus under 28 U.S.C. § 2241 (Doc. No. 1), while in the custody
of U.S. Immigration and Customs Enforcement (“ICE”) at the
Strafford County Department of Corrections (“SCDC”). Before the
court is the petitioner’s request for class action certification
under Fed. R. Civ. P. 23, see Doc. No. 1.
Background
The petitioner asserts that he has been in ICE detention
continuously since March 16, 2023. In that time he has not
appeared before an immigration judge to determine if his
continued detention is justifiable, or if he may be released on
bond or upon other terms of supervision. He asserts that he is
unlikely to be removed in the reasonably foreseeable future, and
1 The petitioner’s immediate custodian is the Strafford
County Department of Corrections Superintendent, who is the
proper respondent to this action. See 28 U.S.C. § 2243. The
Service Order this date adds that party as a respondent.
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that his continued detention violates his Fifth Amendment right
to due process and his rights under the Immigration and
Nationality Act. He asks this court to direct that he be
released immediately, or that he be presented to an immigration
judge for a bond hearing, at which, petitioner argues, the
government will bear the burden of establishing by clear and
convincing evidence that he is either a danger to the community
or a risk of flight.
The petition identifies four ICE detainees at the SCDC who
the petition indicates also want or need bond hearings (Jason
Medina-Siri, Arthur Zeniutsich, Fleurimond Frantzer, and Delroy
McPherson). The petitioner asks that this action proceed as a
class action under Fed. R. Civ. P. 23.
Discussion
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
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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).
“As a general rule . . . an individual appearing pro se may
not represent other individuals in federal court, see 28 U.S.C.
§ 1654 . . . .” 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).
Only Mr. Mugimu has signed the petition, and he is not an
attorney admitted to the Bar of this court. One of the remaining
members of the putative class, Delroy McPherson, is presently
litigating his own § 2241 petition, seeking release or a bond
hearing. See McPherson v. ICE, No. 23-cv-241-JL-AJ (D.N.H.).
The record before this court does not suggest that Mr. Mugimu can
adequately represent the interests of any other detainee.
Accordingly, the district judge should deny the request for class
certification without prejudice to any person’s ability to file
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his or her own § 2241 petition,2 and without prejudice to the
group of detainees seeking class certification through a motion
filed by an attorney appearing on their behalf.
Conclusion
For the foregoing reasons, the district judge should deny
the request for class certification, 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 fourteen-day period may be extended upon
motion. Failure to file objections within the specified time
waives the right to appeal the district court’s order. See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
March 28, 2024
cc: Davis Willis Mugimu, pro se
2 Petitioner does not appear to intend to litigate this
petition as a “next friend” of any other detainee, as he seeks
relief on his own behalf. Cf. 28 U.S.C. § 2242; Whitmore v.
Arkansas, 495 U.S. 149, 163 (1990). Moreover, he has not
provided any explanation “such as inaccessibility, mental
incompetence, or other disability” why any of the listed
detainees “cannot appear on his own behalf to prosecute the
action.” Id. at 163.
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