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 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

JAMES BARBER, 

Appellant, 

v. 

JOSEPH SCHMIDT, BRYAN 

BRANDENBURG, SAM 

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 

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Supreme Court Nos. S-15141/15152 

(Consolidated) 

Superior Court No. 3AN-12-07764 CI 

O P I N I O N 

No. 7026 – July 31, 2015 

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JAMES BARBER, 1 

Appellees. 

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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 

Gutierrez. 

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

Bolger, Justices. 

STOWERS, Justice. 

I. INTRODUCTION 

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 

games. 

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. 

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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. 

II. FACTS AND 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). 

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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. 

III. STANDARD OF REVIEW 

We review the denial of class certification for abuse of discretion,3

 the 

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 

2014). 

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denial of a motion to appoint counsel for abuse of discretion,4 and the dismissal of a 

complaint for failure to state a claim upon which relief can be granted de novo.5 

IV.	 DISCUSSION 

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 

class.”7 In explaining why, we pointed favorably to a federal case, Shaffery v. Winters, 

8 

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). 

6 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). 

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and noted identical language in federal and Alaska class-action rules. 9 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.10 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.”11 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. 

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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 

counsel in most civil cases.”13 However, we have allowed the appointment of counsel 

in “certain civil cases or quasi-civil proceedings by relying on the principles that justify 

appointment of counsel in criminal proceedings.”14 We have required the appointment 

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 

counsel in a civil proceeding.”16 However, rather than ending our analysis there, we 

considered whether the plaintiffs’ due process rights might have been violated under the 

Mathews v. Eldridge17	 18 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. 

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involved and the fiscal and administrative burdens that the 

additional or substitute procedural requirement would 

[ ] entail. 19

In Midgett, we held that a claimant’s economic interests were “not particularly 

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

contexts in which appointment of counsel is required.20 We further held that, while 

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 

motion. 

C. 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. 

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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.23 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.”24 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)). 

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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 claim26 — 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). 

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