Ediger v. Belcher et al

Filing 4

ORDER ENTERED: Plaintiff Jerry J. Ediger proceeds as the sole plaintiff in this matter. All remaining plaintiffs named in the caption are dismissed without prejudice. Plaintiff Ediger's motion 2 for class certification and for court appointe d class counsel 3 are denied. Plaintiff Ediger is granted twenty (20) days to show cause why the complaint should not be summarily dismissed by the court. Signed by Senior District Judge Sam A. Crow on 7/20/2011. (Mailed to pro se party Jerry J. Ediger by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JERRY J. EDIGER,
Plaintiff,
v.

CASE NO. 11-3089-SAC

STEVEN BELCHER, et al.,
Defendants.

O R D E R
This matter comes before the court on a civil complaint filed
pursuant to 28 U.S.C. § 1331 by a prisoner incarcerated in the
United States Disciplinary Barracks (USDB) in Fort Leavenworth,
Kansas.

Plaintiff Jerry J. Ediger proceeds pro se, and names nine

current

or

former

USDB

prisoners

as

additional

plaintiffs.

Plaintiff Ediger is the only party to sign the complaint, and his
signature states he is signing “for Plaintiffs.”
On allegations concerning the conditions of confinement in
administrative segregation at USDB, plaintiff seeks injunctive
relief and damages.
Commandant

Steven

The defendants named in the complaint are USDB
Belcher,

and

USDB

Deputy

Commandant

Thomas

Schmitt, both in their official capacity.
Motion for Class Certification
Plaintiff’s motions for class certification and for appointment
of class counsel are denied.

A party proceeding pro se 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, 1321 (10th Cir.2000).

The court finds this action does not merit appointment of counsel,
and concludes this matter should not be certified as a class action
pursuant to Rule 23 of the Federal Rules of Civil Procedure.
Accordingly, plaintiff Ediger proceeds as the sole pro se
plaintiff in this matter.

All remaining named plaintiffs are

dismissed without prejudice to any such plaintiff filing a separate
action if he chooses to do so.
Screening of the Complaint, 28 U.S.C. § 1915A
Because plaintiff is a prisoner, the court is required to
screen the complaint and to dismiss it or any portion thereof that
is frivolous, fails to state a claim on which relief may be granted,
or seeks monetary relief from a defendant immune from such relief.
28 U.S.C. § 1915A(a) and (b).

Although a complaint filed pro se by

a party proceeding in forma pauperis must be given a liberal
construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), even under
this standard a pro se litigant’s “conclusory allegations without
supporting factual averments are insufficient to state a claim upon
which relief can be based.”
(10th Cir.1991).

Hall v. Bellmon, 935 F.2d 1106, 1110

Plaintiff bears the burden of alleging “enough

facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In this case, plaintiff broadly claims the policy and practice
at USDB of imposing punitive conditions on inmates confined in
administrative

segregation

violates

the

Due

Process

Clause.

Plaintiff cites the classification of inmates to Maximum Custody who
had not been found guilty of any facility infraction, the placement
of inmates in administrative segregation while disciplinary offenses
were investigated, and the continued segregated confinement of
2

inmates after full service of disciplinary sanctions.

Plaintiff

identifies no specific personal involvement by him in any of these
cited examples, and names defendants as responsible for the alleged
unconstitutional USDB

policies and procedures.

Having reviewed the complaint, the court finds it is subject to
being summarily dismissed for the following reasons.
Plaintiff’s claim for damages against the two named defendants
in their official capacity is barred by sovereign immunity.

Such

claims are deemed to be an action against the Government, see
Kentucky

v.

Graham,

473

U.S.

159,

166

(1985),

and

plaintiff

identifies no waiver of sovereign immunity that would permit his
claims to proceed against the United States.

See U.S. v. Orleans,

425 U.S. 807 (1976)(unless immunity is waived, sovereign immunity
protects the United States government from suit); High Country
Citizens

Alliance

v.

Clarke,

454

F.3d

1177,

1181

(10th

Cir.2006)(“While 28 U.S.C. § 1331 grants the court jurisdiction over
all ‘civil actions arising under the Constitution, laws or treaties
of

the

United

States,’

it

does

not

independently

waive

the

Government's sovereign immunity; § 1331 will only confer subject
matter

jurisdiction

where

waiver.”)(citation omitted).

some

other

statute

provides

such

a

See also Feres v. United States, 340

U.S. 135 (1950)(no waiver of sovereign immunity under Federal Tort
Claims Act for injuries to servicemen arising out of or in the
course of activities incident to their military service); Chappell
v. Wallace, 462 U.S. 296, 305 (1983)(extending Feres doctrine to bar
servicemen’s claim under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), seeking damages
for

alleged

violations

of

constitutional
3

rights

by

superior

officers); Tootle v. USDB Commandant, 390 F.3d 1280, 1281 (10th
Cir.2004)(Feres

doctrine

barred

complaint

by

prisoner

seeking

damages for constitutional and other violations alleged to have
occurred during his USDB incarceration).
Plaintiff
sentencing

also

credit

seeks

for

amendment

each

administrative confinement.

day

of

of

USDB

procedures

unconstitutional

and

punitive

Even assuming plaintiff’s allegations

of constitutional deprivation are sufficient on their face to
establish this court’s general federal question jurisdiction under
28 U.S.C. § 1331 to consider these requests for injunctive relief,1
plaintiff alleges no distinct personal injury suffered or threatened
for the purpose of establishing his standing to bring his federal
claims as Article III requires.2
palpable

as

hypothetical."

opposed

to

Such injury “must be distinct and

abstract,

conjectural,

or

merely

Doyle v. Oklahoma Bar Ass'n, 998 F.2d 1559, 1566

(10th Cir.1993)(citations and quotation marks omitted).

Plaintiff

acknowledges in the complaint that individual circumstances are not
included due to the number of plaintiffs involved and the nature of
their claims.

The court grants plaintiff an opportunity to amend

1

See Bell v. Hood, 327 U.S. 678, 681-83 (1946)(federal court
has jurisdiction to entertain complaint seeking recovery directly
under the Constitution unless the claims “clearly appear[ ] to be
immaterial and made solely for the purpose of obtaining
jurisdiction” or are “wholly insubstantial and frivolous”); Simmat
v. U.S. Bureau of Prisons, 413 F.3d 1225, 1230-31 (10th
Cir.2005)(federal district courts have jurisdiction over claims by
federal prisoners seeking vindication of their constitutional rights
under 28 U.S.C. § 1331 against federal officials).
2

Plaintiff,
for
instance,
asserts
exhaustion
of
the
administrative remedies available to USDB prisoners, but cites only
administrative remedies sought by “[v]arious individuals listed in
this claim as Plaintiffs.” (Doc. 1, p.5)
4

the complaint to sufficiently establish plaintiff’s standing to
proceed in this matter.
However, even if the Article III standing requirement can be
satisfied, amendment of the complaint to avoid dismissal of this
action as stating no claim for relief is still necessary to state a
viable

constitutional

assertion

that

the

claim.

punitive

Plaintiff’s
conditions

bare

and

allegedly

conclusory

imposed

for

administrative detention constitute an atypical or significant
hardship fails to establish a liberty interest protected by the Due
Process Clause.

See Sandin v. Conner, 515 U.S. 472 (1995); Hall v.

Bellmon, 935 F.2d at 1109-10.

The mere formulaic recitation of the

elements of a cause of action is insufficient to avoid dismissal of
a complaint as failing to state a claim for relief.

Twombly, 550

U.S. at 555.
Notice and Show Cause Order to Plaintiff Ediger
Plaintiff Ediger is thus directed to show cause why the
complaint should not be summarily dismissed for the reasons stated
herein.

The failure to file a timely response may result in the

complaint being dismissed without further prior notice to plaintiff.
IT IS THEREFORE ORDERED that plaintiff Jerry J. Ediger proceeds
as the sole plaintiff in this matter, and that all remaining
plaintiffs named in the caption are dismissed without prejudice.
IT IS FURTHER ORDERED that plaintiff Ediger’s motion for class
certification (Doc. 2) and for court appointed class counsel (Doc.
3) are denied.
IT IS FURTHER ORDERED that plaintiff Ediger is granted twenty
(20) days to show cause why the complaint should not be summarily
dismissed for the reasons stated by the court.
5

IT IS SO ORDERED.
DATED:

This 20th day of July 2011 at Topeka, Kansas.

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

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