Ogden et al v. Con Care, Inc. et al
Filing
11
MEMORANDUM AND ORDER ENTERED: The requeset that this matter be treated as a class action is denied. The combined motion 2 to appoint counsel and for leave to proceed in forma pauperis is denied in part. Plaintiff Ogden is directed to submit finan cial records in support of the motion for leave to proceed in forma pauperis on or before July 29, 2011. On or before July 29, 2011, plaintiff Ogden shall supplement the factual allegation of his complaint to provide specific assertions in support o f the claims therein. The failure to file a timely response may result in the dismissal of this matter without additional prior notice to the plaintiff. The motions of Schina T. Gantt 3 , Sean C. Costa, Richard S. Skelley, and Andrew Gill 4 , and Bobby Mans, Anthony Smith, and Rodney S. Goleman 5 to be added as plaintiffs are denied without prejudice to their filing separate actions. Plaintiffs Vincent Taylor, G.D. Blankenship, Steve McMillan, Aaron Haig, Raymond Sipult, Wesley A. Smith, Kevin L. Tawzer, Steven McCarley, Derek I. Henson, Donald R. Rowden, Joshua P. Harris, Tish Miles, James Blackbear, Francisco Ortega, Branden S. Bell, Sr., Haikaz Mansuryan, Keith K. Thurman, and William B. Becker are dismissed from this matter without prejudice to their filing of separate actions. Signed by Senior District Judge Sam A. Crow on 7/1/2011. (Mailed to pro se party Garrett Jack Ogden by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GARRETT JACK OGDEN, et al.,
Plaintiffs,
CIVIL ACTION
No. 10-3190-SAC
vs.
CON CARE, INC., et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the court on a civil rights
complaint filed pursuant to 42 U.S.C. § 1983 by a number of
prisoners incarcerated in the Sedgwick County Jail, Wichita,
Kansas.
Plaintiffs proceed pro se, and they seek the certification
of this matter as a class action and the appointment of counsel.
The defendants are Con Care, Inc., a contracting health
care provider, the Sedgwick County Sheriff, and the Sedgwick
County District Attorney.
The
complaint
broadly
alleges
a
conspiracy
among
the
defendants to artificially inflate the bonding system, knowing
this will result in overcrowding at the jail and create unsafe
and
unhealthy
conditions
there.
The
complaint
cites
the
imposition of excessive bond and extended sentences, resulting
in a large number of persons detained on non-violent offenses,
property crimes, and traffic infractions. The complaint broadly
alleges this is intended to “fleece the Federal government, and
the
Citizens
money.”
of
Sedgwick,
(Doc. 1, p.2.)
out
increasingly
larger
sums
of
Finally, the complaint asserts a claim
that persons detained in the jail have been denied due process
by the services of an overburdened public defenders office, and
general claims concerning the conditions of confinement in the
jail, including access to medical care, special diets, and the
lack of self-help programs.
Initial screening
A federal court must conduct an initial screening of any
action in which a prisoner seeks relief from a governmental
entity or an officer or employee of such an entity.
U.S.C. § 1915A(a).
See 28
In conducting the screening, the court must
identify any viable claim and must dismiss any part of the
action which is frivolous, malicious, fails to state a claim
upon which relief may be granted, or seeks monetary damages from
a defendant who is immune from such relief.
See 28 U.S.C.
§1915A(b).
A pro se party’s complaint must be given a liberal construction.
Haines v. Kerner, 404 U.S.
2
519, 520 (1972).
However, a party proceeding pro se has “the burden of alleging
sufficient facts on which a recognized legal claim could be
based.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
To state a claim for relief, the complaint must present
allegations of fact, assumed to be true, that “raise a right to
relief above the speculative level.”
Twombly, 550 U.S. 544, 555 (2007).
Bell Atlantic Corp. v.
The complaint must present
“enough facts to state a claim to relief that is plausible on
its face.”
Id. at 570.
At this stage, the court accepts all
well-pleaded allegations as true and views them in the light
most favorable to the plaintiff.
Id. at 555.
Having considered the complaint, the court is considering
the dismissal of this matter due to the failure to identify any
specific factual support for the claims of conspiracy and civil
rights violations.
Plaintiffs have failed to identify any acts
or omissions by the named defendants that support the theory of
a broad conspiracy to create an overcrowded facility in order to
exacerbate living conditions there. Such conclusory allegations
are not sufficient to state a claim for relief, and unless
additional support is provided, this matter will be dismissed
upon its merits.
Motions
Plaintiffs have filed a combined motion for the appointment
3
of counsel and for leave to proceed in forma pauperis (Doc. 2).
A party in a civil action has no constitutional right to
the assistance of counsel in the prosecution or defense of such
an action.
1969).
Bethea v. Crouse, 417 F.2d 504, 505 (10th Cir.
Rather, the decision whether to appoint counsel in a
civil matter lies in the discretion of the district court.
Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991).
The
court should consider "the litigant's claims, the nature of the
factual issues raised in the claims, the litigant's ability to
present his claims, and the complexity of the legal issues
raised by the claims."
Long v. Shillinger, 927 F.2d 525, 526-27
(10th Cir. 1991).
The
court
has
carefully
considered
the
complaint
concludes the appointment of counsel is not warranted.
and
The
claims here are conclusory and do not identify any specific acts
by the named defendants that would state a plausible claim of
conspiracy.
Accordingly, the motion for the appointment of
counsel will be denied.
Next, the present complaint is captioned as a “class action
complaint” (Doc. 2, p. 1).
However, a party proceeding pro
pro may not represent other pro se parties in federal court,
and may not serve as a class representative in a putative class
action.
See Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320,
4
1321 (10th Cir. 2000).
The court has determined that this
matter does not merit the appointment of counsel and also
concludes this matter should not be certified as a class action
pursuant to Rule 32 of the Federal Rules of Civil Procedure.
Accordingly, the court will dismiss all plaintiffs except
plaintiff Ogden from this action without prejudice and will deny
the motions of those individuals who have moved to be added to
this matter as a plaintiff.
Any plaintiff who wishes to bring
a separate action may do so, however, any such action should
reference the fact that that plaintiff was dismissed from the
present action.
Plaintiff Ogden will be directed to supplement the motion
for
leave
to
proceed
in
forma
pauperis
with
a
certified
statement from his institutional account showing the balance and
deposit information for that account for the preceding six
months.
In addition, plaintiff Ogden will be directed to provide
specific
factual
support
for
the
claims
presented
in
the
complaint.
IT IS, THEREFORE, BY THE COURT ORDERED the request that
this matter be treated as a class action is denied.
IT
IS
FURTHER
ORDERED
the
combined
motion
to
appoint
counsel and for leave to proceed in forma pauperis (Doc. 2) is
5
denied in part.
Plaintiff Ogden is directed to submit financial
records in support of the motion for leave to proceed in forma
pauperis on or before July 29, 2011.
IT IS FURTHER ORDERED that on or before July 29, 2011,
plaintiff Ogden shall supplement the factual allegation of his
complaint to provide specific assertions in support of the
claims therein.
The failure to file a timely response may
result in the dismissal of this matter without additional prior
notice to the plaintiff.
IT IS FURTHER ORDERED the motions of Schina T. Gantt (Doc.
3), Sean C. Costa, Richard S. Skelley, and Andrew Gill (Doc. 4),
and Bobby Mans, Anthony Smith, and Rodney S. Coleman (Doc. 5) to
be added as plaintiffs are denied without prejudice to their
filing separate actions.
IT IS FURTHER ORDERED plaintiffs Vincent Taylor, G.D.
Blankenship, Steve McMillan, Aaron Haig, Raymond Sipult, Wesley
A. Smith, Kevin L. Tawzer, Steven McCarley, Derek I. Henson,
Donald R. Rowden, Joshua P. Harris, Tish Miles, James Blackbear,
Francisco Ortega, Branden S. Bell, Sr., Haikaz Mansuryan, Keith
K. Thurman, and William B. Becker are dismissed from this matter
without prejudice to their filing of separate actions.
Copies of this order shall be transmitted to the parties
and movants.
6
IT IS SO ORDERED.
Dated at Topeka, Kansas, this 1st day of July, 2011.
S/ Sam A. Crow
SAM A. CROW
United States Senior District Judge
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