Stanley v. Belcher et al

Filing 4

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for court-appointed class counsel and for certification 3 as a class are denied. The clerk of the court shall issue summons to the named defendants pursuant to Rule 4 of the Federal Rules of Civil Procedure with costs taxed to the plaintiff. Signed by Senior District Judge Sam A. Crow on 3/26/2013. (Mailed to pro se party Aaron R. Stanley by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

AARON R. STANLEY,
Plaintiff,
v.

CASE NO. 12-3089-SAC

COL. ERIC R. BELCHER, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the court on a civil complaint filed
by a prisoner at the United States Disciplinary Barracks, Fort
Leavenworth, Kansas (USDB). Plaintiff proceeds pro se and submitted
the full filing fee.
Plaintiff seeks declaratory and injunctive relief and damages
for events arising from an August 2010 incident at the USDB in which
inmates were allegedly subjected to excessive and unnecessary force
in quelling an uprising. Plaintiff also challenges a June 2011
modification of the USDB custody elevation policy which created
certain

disqualifying

conditions,

including

the

pendency

of

disciplinary action, resulting in the ineligibility of many of those
involved in the August 2010 incident for elevation of custody. The
court has examined the complaint and finds a response is necessary
to ensure the proper resolution of plaintiff’s claims.
Motions for class certification and appointment of counsel
Plaintiff seeks the certification of this matter as a class
pursuant to Rule 23(a) of the Federal Rules of Civil Procedure. A
person may conduct his own case personally, that is, pro se, or through
counsel. 28 U.S.C. § 1658. However, plaintiff may not proceed on behalf

of others incarcerated at the USDB. See Fymbo v. State Farm Fire and
Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000)(A party “may bring his
own claims in federal court without counsel, but not the claims of
others.”) Accordingly, plaintiff will not be allowed to serve as a
class representative, and the motion to certify this matter as a class
action is denied.
Plaintiff also moves for the appointment of counsel. There is
no constitutional right to the appointment of counsel in a civil
action. Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995); Durre v.
Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). While 28 U.S.C. §1915(e)(1)
allows the court to request that an attorney represent a party unable
to afford counsel, the decision whether to appoint counsel is in the
discretion of the district court. Williams v. Meese, 926 F.3d 994,
996 (10th Cir. 1991). In deciding whether to appoint counsel, the court
should consider the likely merits of the claims, the nature of the
factual issues presented, the movant’s ability to present the claims,
and

the

complexity

of

the

legal

issues

presented.

Rucks

v.

Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).
The court has reviewed the complaint and finds plaintiff is
articulate and able to explain the relevant facts and legal grounds.
He has prepared and submitted a complex pleading with a number of
exhibits. The court finds no basis to appoint counsel at the present
but will reconsider the request upon the further development of the
record.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
court-appointed class counsel (Doc. 2) and for certification as a
class (Doc. 3) are denied.

IT IS FURTHER ORDERED the clerk of the court shall issue summons
to the named defendants pursuant to Rule 4 of the Federal Rules of
Civil Procedure, with costs taxed to the plaintiff.
IT IS SO ORDERED.
DATED:

This 26th day of March, 2013, at Topeka, Kansas.

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