BOOTH v. COSSA-RHODES et al

Filing 16

ORDER denying 11 Motion to Appoint Counsel ; and denying 11 Motion to Certify Class. (copy to Plaintiff via US Mail) Signed by Judge Jane Magnus-Stinson on 6/27/2012. (SMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
SHAUN K. BOOTH,

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Plaintiff,
vs.
T.K. COZZA-RHODES, et al.,
Defendants.

2:12-cv-0030-JMS-WGH

Entry Discussing Motion for Appointment of Counsel
and for Certification of Class Action
I.
The plaintiff’s motion for appointment of counsel [11] has been considered.
The plaintiff asserts that he has been unsuccessful in recruiting representation on
his own. Although the court concludes, based on the above filing, that the plaintiff
has made a reasonable effort to secure representation, he should continue his own
effort.
The court proceeds to the second inquiry required in these circumstances.
The court’s task in this second inquiry is to analyze the plaintiff’s abilities as
related to “the tasks that normally attend litigation: evidence gathering, preparing
and responding to motions and other court filings, and trial.” Pruitt v. Mote, 503
F.3d 647, 654-55 (7th Cir. 2007). Accordingly, the question is not whether an
attorney would help the plaintiff’s case, but whether, given the difficulty of the case,
the plaintiff seems competent to litigate it himself. Id. at 653-655. At this point,
based on the plaintiff’s comprehensible filings, his use of the court’s processes, his
familiarity with both the factual circumstances surrounding his claims and with the
legal issues associated with those claims, the plaintiff is competent to litigate on his
own.
Based on the foregoing, the plaintiff’s motion for appointment of counsel [11]
is denied.

II.
The plaintiff has filed a motion for class certification. The plaintiff is confined
at the United State Penitentiary in Terre Haute, Indiana. He alleges that his due
process rights were violated when he was placed in the Blue/Gold (“BG”) Program
after he was found guilty of a prison rule infraction. The proposed class consists of
present and future inmates who have been confined in the BG Program at USP
Terre Haute.
Rule 23(a) of the Federal Rules of Civil Procedure establishes four
prerequisites for class certification: "(1) [that] the class is so numerous that joinder
of all its members is impracticable, (2) [that] there are questions of law or fact
common to the class, (3) [that] the claims or defenses of the representative parties
are typical of the claims or defenses of the class, and (4) [that] the representative
parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P.
23(a). Class certification is not appropriate unless the named plaintiff establishes
all four prerequisites. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147,
156 (1982).
Due process mandates that the fourth requirement--competent
representation--be "stringently applied," because "members of [a] class are bound
[by the judgment in a class action suit] unless they exercise their option to be
excluded, even though they may not be actually aware of the proceedings."
Albertson's, Inc. v. Amalgamated Sugar Co., 503 F.2d 459, 463-64 (10th Cir. 1974);
Mechigian v. Art Capital Corp., 612 F. Supp. 1421, 432 (S.D.N.Y. 1985). Adequacy of
representation is measured by a two-pronged test: there must be an "absence of . . .
potential conflict between the named plaintiffs and the absent class members," and
"the parties' attorneys [must] be qualified, experienced, and generally able to
conduct the proposed litigation." Margolis v. Caterpillar, Inc., 815 F. Supp. 1150,
1157 (C.D.Ill. 1991).
The plaintiff meets neither prong. First, he is a member of the class he seeks
to represent, and courts have held that "the potential for conflicts of interest
militates against certifying a class in which the class representatives seek to also
act as class counsel." Loden v. Edgar, 1994 WL 97726, at *1 (N.D.Ill. Mar. 22, 1994);
see also Wagner v. Taylor, 836 F.2d 578, 595-96 & n.126 (D.C.Cir. 1987). Second, the
plaintiff is a pro se litigant and asserts that if the court grants class certification, he
would need to have the court appoint counsel. The plaintiff’s request for the
appointment of counsel has been denied. See Lasley v. Godinez, 833 F.Supp. 714,
715 n.1 (N.D.Ill. 1993) (pro se prisoners could not adequately represent class of
inmates); Turner-El v. Illinois Bd. of Education, 1994 WL 27874, at *1 (N.D.Ill. Jan.
31, 1994) ("Because a layman does not ordinarily possess the legal training and
expertise necessary to protect the interests of a proposed class, courts are reluctant
to certify a class represented by a pro se litigant.")(citing Phillips v. Tobin, 548 F.2d

408, 413-14 (2d Cir. 1976); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.
1975); Ethnic Awareness Organization v. Gagnon, 568 F. Supp. 1186, 1187
(E.D.Wis. 1983)).
On the basis of the foregoing, therefore, the plaintiff=s motion for class
certification [11] is denied.
IT IS SO ORDERED.

06/27/2012
Date: __________________
Distribution:
Shaun K. Booth
No. 11145-078
USP Terre Haute
Inmate Mail/Parcels
P.O. Box 33
Terre Haute, IN 47808

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana