Ogden et al v. Con Care, Inc. et al

Filing 34

MEMORANDUM AND ORDER ENTERED: This matter is dismissed for failure to state a claim upon which relief may be granted. Plaintiff is granted leave to proceed in forma pauperis. No initial partial filing fee is assessed; however, plaintiff remains ob ligated to pay the $350.00 filing fee. Plaintiff's motion 31 for order and motion 32 to consolidate cases are denied. Signed by Senior District Judge Sam A. Crow on 1/30/2012. (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,
Plaintiff,
v.

CASE NO. 10-3190-SAC

CON CARE, INC., et al.,
Defendants.

MEMORANDUM AND ORDER

This matter is a civil rights action filed pursuant to 42
U.S.C. § 1983. By its previous order, the court declined to certify
this matter as a class action, dismissed without prejudice all
plaintiffs except Garrett Jack Ogden (“Ogden”), directed plaintiff
Ogden to submit financial records in support of his motion for leave
to

proceed

in

forma

pauperis,

and

directed

him

to

file

a

supplemental pleading providing specific factual assertions in
support of the claims presented.
Plaintiff filed a timely statement of supplemental allegations
(Doc. 29) and a supplement to the motion for leave to proceed in
forma pauperis (Doc. 30); he also submitted a motion for protection
from abuse order (Doc. 31) and a motion to consolidate cases (Doc.
32).
Motion to proceed in forma pauperis
Because plaintiff commenced this action while incarcerated,
this motion is governed by 28 U.S.C. § 1915(b). Pursuant to 28

U.S.C. § 1915(b)(1), the court must assess as an initial partial
filing fee twenty percent of the greater of the average monthly
deposits or average monthly balance in the prisoner's account for
the six months immediately preceding the date of filing of a civil
action.
Having examined the supplemental records submitted by the
plaintiff, the court finds there were no deposits to plaintiff’s
institutional

account,

and

the

average

monthly

balance

was

a

negative balance primarily reflecting unpaid fees for medications
dispensed to the plaintiff. The court therefore assesses no initial
partial filing fee in this matter and will grant the motion for
leave to proceed in forma pauperis.1
Motion for protection from abuse
Plaintiff moves for a court order directing the Sedgwick County
District

Attorney’s

Office,

the

Sedgwick

County

Sheriff’s

Department, and the Wichita Police Department to refrain from
various acts, including contacting him in any way except by mail,
threatening him with the use of force, and entering his workplace or
residence.
The court liberally construes this motion as a request for
preliminary injunctive relief. Plaintiff has the burden to establish
his right to relief by clear proof, and he may not rest on bare
claims. A preliminary injunction is an extraordinary remedy and will

1

Plaintiff remains obligated to pay the $350.00 filing fee in
installments calculated pursuant to 28 U.S.C. § 1915(b)(2).
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not be imposed as a matter of rights. Beltronics USA, Inc. v.
Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir.
2009).
Plaintiff has not established by clear proof that there is any
real or immediate danger to him in the absence of the relief sought,
and relief granted upon his essentially unsupported request would
contravene public police by an unreasonable interference with law
enforcement. Accordingly, the motion will be denied.
Motion to consolidate
Plaintiff moves to consolidate this matter with Case No. 113124, Ogden v. Sedgwick County District Attorney’s Office, et al. A
district court, in its discretion, may consolidate separate actions
where the cases involve a common issue of law or fact. Fed. R. Civ.
P. 42(a). The rule allows the court “to decide how cases on its
docket are to be tried so that the business of the court may be
dispatched with expedition and economy while providing justice to
the parties.” Breaux v. American Family Mutual Insurance Co., 220
F.R.D. 366, 367 (D.Colo. 2004)(quoting 9 C. Wright & A. Miller,
Federal Practice and Procedure § 2381 at 427 (2nd ed. 1995)).
The court denies the motion for consolidation. The present
action concerns conditions of confinement at the Sedgwick County
Adult Detention Center, while Case No. 11-3124 involves challenges
to detentions of plaintiff Ogden by law enforcement officers. There
is no apparent basis to support the consolidation of these matters.
Screening
The court has reviewed the supplemental pleading submitted by
3

the plaintiff. In the pleading, he broadly alleges (1) that the
Sedgwick

County

Sheriff’s

Department

and

the

Sedgwick

County

District Attorney’s Office, in conjunction with the 18th Judicial
District Court, acted to inflate the jail population by requiring
unreasonable bond amounts in criminal cases, resulting in the
detention of “the homeless, the poor, and those without the means to
pay an unreasonable bond” (Doc. 29, p. 2), (2) using this forced
detention of non-violent offenders to attract federal and state
funding by demonstrating need; and (3) constricting services within
the jail.
Plaintiff states that he has been denied medications that were
previously prescribed (id., p. 6); however, he also states that he
was told that he could receive the necessary health aids and
medications in the jail clinic, an option he appears to reject due
to

the

relative

isolation

and

lack

of

“visits,

exercise,

entertainment, or movement of any kind” (id.). Finally, plaintiff
claims that he was denied due process by continuances requested by
appointed

counsel

(id.

p.

7),

and

he

alleges

a

pattern

of

overcharging is used “to keep the bonds high, fill the jail with
non-violent offenders ... and place a greater reluctance within the
defendant to proceed to an actual trial.” Id.
In reviewing the pleading, the court accepts as true all wellpleaded allegations of the complaint. McDonald v. Kinder–Morgan,
Inc., 287 F.3d 992, 997 (10th Cir.2002). The court considers the
complaint to determine whether it “‘contains enough facts to state
a claim to relief that is plausible on its face.’” Ridge at Red
4

Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The court also is mindful that the pleadings filed by a pro se
litigant must be given a liberal construction. Erickson v. Pardus,
551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972).
This standard, though, “does not relieve the plaintiff of 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), and
a pro se plaintiff may not proceed only upon “mere conclusions
characterizing pleaded facts.” Bryson v. City of Edmond, 905 F.2d
1386, 1390 (10th Cir.1990).
The court has carefully considered the supplemental complaint
and concludes this matter should be summarily dismissed. Plaintiff’s
bare claims of a systemic effort to inflate the jail population by
manipulating criminal charges and bond levels are conclusory and
speculative.

Many

of

his

claims

involve

challenges,

such

as

excessive bond and delay in proceedings, that should be presented in
the state criminal action. Finally, to the extent plaintiff alleges
a failure to provide him with adequate medical attention, it appears
he was simply unwilling to accept housing in the clinic where such
medical attention was available. This scenario does not suggest an
unconstitutional deprivation of care.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED plaintiff is granted leave to proceed in
forma pauperis. No initial partial filing fee is assessed; however,
5

plaintiff remains obligated to pay the $350.00 filing fee.
IT IS FURTHER ORDERED plaintiff’s motion for order (Doc. 31)
and motion to consolidate cases (Doc. 32) are denied.
Copies of this order shall be transmitted to plaintiff and to
the Finance Officer of the Sedgwick County Adult Detention Facility.
IT IS SO ORDERED.
DATED:

This 30th day of January, 2012, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

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