The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
MANUEL LUCERO, et al., )
Plaintiffs, )
)
v. ) Civil No. 23-10088-LTS
)
KEVIN COPPINGER, et al., )
Defendants. )
)
MEMORANDUM AND ORDER
January 23, 2023
SOROKIN, J
For the reasons set forth below, the Court denies Manuel Lucero’s motion to certify class
and denies without prejudice Lucero’s emergency motion for temporary restraining order and
preliminary injunction. If plaintiffs wish to proceed with this action, on or before March 1, 2023,
they either must pay the $402.00 filing fee or each plaintiff must file an Application to Proceed in
District Court Without Prepaying Costs or Fees and a copy of his prison account statement
I. BACKGROUND
On January 13, 2023, Manuel Lucero, now in custody at the Essex County Correctional
Facility (“ECCF”), filed a motion to certify class and an emergency motion for temporary
restraining order and preliminary injunction. ECF Nos. 2, 4. At the same time, Lucero filed a
complaint that is signed by Lucero and fourteen other inmates in custody at ECCF. ECF No. 1.
The defendants named in the complaint are Kevin Coppinger, the Essex County Sheriff; George
Glynos, an ECCF grievance officer; “John Doe” Udom, the ECCF medical director and facility
physician; and John Doe, the ECCF assistant superintendent. Plaintiffs’ complaint is brought
under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. § 2000cc. They contend that their statutory and constitutional rights are
being violated due to actions and inactions surrounding COVID-19 policies.
II. FILING FEE
No filing fee has been paid in connection with the filing of the complaint and none of the
fifteen plaintiffs have filed motions for leave to proceed in forma pauperis.
Litigants bringing a civil action must either (1) pay the $350.00 filing fee and the $52.00
administrative fee1, see 28 U.S.C. § 1914(a); or (2) seek leave to proceed without prepayment of
the filing fee, see 28 U.S.C. § 1915 (proceedings in forma pauperis). Where, as here, the plaintiffs
are prisoners, a motion for waiver of prepayment of the filing fee must be accompanied by “a
certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for
the 6-month period immediately preceding the filing of the complaint . . . obtained from the
appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C. §
1915(a)(2).2 “Where there are multiple plaintiffs in a civil action … it has been the practice of this
court to apportion equally the filing fee between or among all plaintiffs (both in prisoner and non-
prisoner cases).” Cuevas v. DiPaulo, No. 11-10884-WGY, 2011 WL 2110759, at *2 (D. Mass.
May 23, 2011) (collecting cases).
1 The $52.00 administrative fee does not apply to persons proceeding in forma pauperis. See
Judicial Conference Fee Schedule.
2 Unlike other civil litigants, prisoner plaintiffs are not entitled to a complete waiver of the filing
fee, notwithstanding the grant of in forma pauperis status. Based on the information contained in
the prison account statement(s), the Court will direct the appropriate prison official to withdraw
an initial partial payment from the plaintiff’s account, followed by payments on a monthly basis
until the entire $350.00 filing fee is paid in full. See 28 U.S.C. § 1915(b)(1)-(2). Even if the action
is dismissed upon a preliminary screening, see 28 U.S.C. §§ 1915(e)(2), 1915A, the plaintiff
remains obligated to pay the filing fee, see McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir.
1997).
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Here, if one or more of the plaintiffs wish to proceed on a self-represented basis, each
plaintiff must file an Application to Proceed in District Court Without Prepaying Costs or Fees
accompanied by a certified copy of their prison account statement. The filing fee would be
apportioned among the number of plaintiffs actually proceeding in the action.1 The plaintiffs will
be granted additional time to either pay the $402 filing fee or file applications to proceed without
prepayment of the filing fee accompanied by certified copies of their prison account statements.
III. CLASS CERTIFICATION
Lucero and the other fourteen inmates who signed the complaint are proceeding pro se.
Although each of the plaintiffs may bring a claim or claims on his own behalf, none may represent
another inmate. Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982); 28 U.S.C.
§ 1654 (“In all courts of the United States the parties may plead and conduct their own cases
personally or by counsel as, by the rules of such court, respectively, are permitted to manage and
conduct causes therein.”); Local Rule 83.5.5(b) of the Local Rules of the U.S. Dist. Ct. for the
Dist. of Mass. (2015) (“An individual appearing pro se may not represent any other party and may
not authorize any other individual who is not a member of the bar of this district to appear on his
or her behalf.”). For that reason, a pro se inmate may not represent other inmates in a class action.
Mincy v. Deparlos, 497 F. App'x 234, 238, n. 3 (3d Cir. 2012); Johnson v. Brown, 581 F. App'x
777, 781 (11th Cir. 2014); Khalil v. Laird, 353 F. App'x 620, 621 (2d Cir. 2009).
Because Lucero and the other plaintiffs are appearing pro se, and they are not alleged to be
attorneys admitted to the bar, they may not represent other inmates in a class action. Without
1 If 15 plaintiffs were permitted to proceed, each plaintiff would be responsible for a
payment of $23.33. If there are less plaintiffs, then the filing fee would be apportioned among the
number of plaintiffs actually proceeding in the action.
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counsel, Lucero cannot act as a class representative nor can he represent any other individually
named plaintiff. Because Lucero cannot adequately represent the interests of the class he has
identified, the motion to certify class is denied.
IV. LUCERO’S EMERGENCY MOTION
In the emergency motion for temporary restraining order and preliminary injunction,
Lucero seeks to have this Court enjoin the defendants from depriving covid-negative inmates from
access to the law library and religious services and enjoin any retaliation against plaintiffs because
of their participation in this litigation.
“[A] preliminary injunction may be imposed ‘only on notice to the adverse party,’ a
requirement that ... include[s] a hearing followed by findings that the party to be favored has a
substantial likelihood of success in the pending action, would otherwise suffer irreparable harm[,]
and can claim the greater hardship in the absence of an order ....” Fryzel v. Mortg. Elec. Reg. Sys.,
Inc., 719 F.3d 40, 44 (1st Cir. 2013) (quoting Fed. R. Civ. P. 65(a)(1)). A temporary restraining
order (“TRO”) is an extraordinary order issued without notice to the party to be enjoined that may
last no more than 14 days. Fed R. Civ. P. 65(b)(2). A TRO may issue without notice only if
"specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable
injury, loss, or damage will result to the movant before the adverse party can be heard in
opposition." Fed. R. Civ. P. 65(b)(1)(A). Even where a plaintiff makes a showing of "immediate
and irreparable" injury, the Court cannot issue a TRO without notice to the adverse parties unless
the plaintiff "certifies in writing any efforts made to give notice and the reasons why it should not
be required." Fed. R. Civ. P. 65(b)(1)(B).
The Court will not enter an injunction without first providing the Defendants an
opportunity to respond or be heard. Here, there is no certification in writing of any effort made to
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provide at least informal notice to the defendants and no details as to the reasons why such notice
should not be required. See Fed. R. Civ. P. 65(a)(1). Thus, I find that Lucero has not satisfied the
requirements of either Rule 65(a)(1) or Rule 65(b)(1)(B).
V. CONCLUSION
In accordance with the foregoing, the Court hereby orders that:
1. The motion (ECF No. 2) for temporary restraining order and preliminary injunction
is DENIED WITHOUT PREJUDICE.
2. The motion (ECF No. 4) to certify class is DENIED.
3. If one or more of the plaintiffs wish to proceed on a self-represented basis, on or
before March 1, 2023, they either must pay the $402.00 filing fee or each plaintiff
must file an Application to Proceed in District Court Without Prepaying Costs or
Fees and a copy of his prison account statement for the 6-month period preceding
January 13, 2023. Failure of any plaintiff to comply with these directives may result
in the dismissal of that plaintiff from this action without prejudice. The Clerk shall
provide each plaintiff with a copy of the standard Application to Proceed in District
Court Without Prepaying Fees or Costs and shall send a copy of this Order to the
Treasurer’s Office at the Essex County Correctional Facility in order to facilitate
any request by plaintiffs for copies of their certified prison account statements.
SO ORDERED.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge
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