Cochrun et al v. Weber et al

Filing 76

ORDER denying 57 Motion for certification of class; denying 57 Motion to Appoint Counsel; denying 62 Motion for injunction and restraining order; granting 73 Motion to Stay Discovery; denying as moot 73 Motion for Protective Order. Defendants to submit motion addressing qualified immunity on or before 07/12/2013. Signed by U.S. District Judge Karen E. Schreier on 6/11/2013. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DEAN COCHRUN,
a/k/a Dean Allen Cochrun,
Plaintiff,
vs.
DOUGLAS WEBER, Warden, SDSP;
DARYL SLYCKHUIS,
Associate Warden, SDSP;
CLIFTON FANTROY,
Unit Manager, SDSP; and
ALL KNOWN AND UNKNOWN
PARTIES,
Defendants.

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Civ. 12-4071-KES

ORDER DENYING CERTIFICATION
OF CLASS, DENYING MOTION FOR
PRELIMINARY INJUNCTION,
DENYING MOTION FOR
APPOINTMENT OF COUNSEL, AND
GRANTING MOTION TO STAY
DISCOVERY

Plaintiff, Dean Cochrun, a/k/a Dean Allen Cochrun, is incarcerated at
the South Dakota State Penitentiary in Sioux Falls, South Dakota. Currently
pending before this court are Cochrun’s motion for certification of a class
(Docket 57), motion for injunction and restraining order (Docket 62), and
motion for appointment of counsel (Docket 57). Without directly responding to
Cochrun’s motions, defendants filed a motion to stay discovery until the issue
of qualified immunity is resolved. Docket 73. The court has reviewed each
motion, and for the reasons set forth below, the court denies plaintiff’s motion
for certification of class, motion for injunction and restraining order, and
motion for appointment of counsel. Further, the court grants defendants’
motion to stay discovery.

I.

The Court Denies Cochrun’s Motion for Certification of Class.
Cochrun asserts that his lawsuit was filed
on behalf of the Class of prisoners who are in the South Dakota
Department of Corrections care and custody and subject to the
Jurisdiction of the State of South Dakota’s Judicial Branch of
Government by order of court for confinement in any of the
numerous prisons through the State of South Dakota including the
South Dakota Women’s Prison located in Pierre, South Dakota and
the Yankton Minimum Security Unit in Yankton South Dakota and
all others inclusive therein within the South Dakota State Border.

Docket 57 at 1. Cochrun insists that he originally indicated his intention to file
the instant action as a class action, which included several other plaintiffs who
have since been dismissed from this action. See Docket 22. Finally, Cochrun
argues that
[t]he prisoners included in this Class are being subjected to the
same treatments as [plaintiff] is being subjected to. [Plaintiff]’s
spouse Jamie Lynn Cochrun is being confined in the South Dakota
Women’s Prison and the Department of Corrections policies
interfere with his marriage. All the prisoners are being denied Due
Process of the Law and are being subjected to fines that are
unconstitutional. The prison staff do not follow their own policies
and guidelines often failing to protect prisoners. The grievance
procedure is inadequate et cetera.
Docket 57 at 2.
To receive class certification under Fed. R. Civ. P. 23, a movant must
demonstrate the following:
(1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common to the
class, (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class, and (4) the

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representative parties will fairly and adequately protect the
interests of the class.1
In addition to meeting each of these prerequisites to class certification,
movants must also satisfy one of the circumstances outlined in Rule
23(b)(1)–(3).
The issues raised in Cochrun’s motion for class certification were
previously raised by Cochrun in his original complaint. See Docket 1. After
screening Cochrun’s original complaint, the court dismissed his due process
allegations for failure to state a claim on which relief could be granted. Docket
22. The only claims that remain in the instant action are Cochrun’s access-tocourts and retaliation claims. Id. It is therefore apparent that, in addition to
being incapable of fairly and adequately protecting the legal interests of his
purported class, see 7A Wright, Miller & Kane, Federal Practice and Procedure,
Civil 3d § 1769.1 (class representatives cannot appear pro se), Cochrun’s
instant action does not present a single question of law common to a certifiable
class, see Rentschler v. Carnahan, 160 F.R.D. 114, 116 (E.D. Mo. 1995)
(citations omitted) (noting that “there need only be a single issue common to all
class members). Furthermore, Cochrun’s motion does not demonstrate “ ‘that
there are other members of the class who have the same or similar grievances

1

These prerequisites to class certification are often referred to as
numerosity, commonality, typicality, and adequacy of representation. Paxton v.
Union Nat’l Bank, 688 F.2d 552, 559 (8th Cir. 1982).
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as the plaintiff.’ ” Rentschler, 160 F.R.D. at 116 (quoting Donaldson v. Pillsbury
Co., 554 F.2d 825, 830 (8th Cir. 1977)). Cochrun has therefore failed to satisfy
three of the four prerequisites to class certification. Accordingly, the court
denies Cochrun’s motion for certification of a class.
II.

The Court Denies Cochrun’s Motion for Preliminary Injunction and
Temporary Restraining Order.
Pursuant to SDCL § 15-6-65, Cochrun requests either a preliminary

injunction or a temporary restraining order to prevent defendants from
interfering with Cochrun’s correspondence related to his wife’s habeas
petition—a case in which Cochrun is serving as the jailhouse lawyer. Docket
62. Cochrun also requests that the court prevent defendants from denying
Cochrun meaningful access to the law library at the South Dakota State
Penitentiary. Id. Because the Federal Rules of Civil Procedure apply to this
action, however, the court will evaluate Cochrun’s motion in accordance with
Rule 65(a) of the Federal Rules of Civil Procedure.
“A preliminary injunction is an extraordinary remedy.” Roudachevski v.
All-American Care Centers, Inc., 648 F.3d 701, 705 (8th Cir. 2011) (citing
Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003)). “The burden of
proving that a preliminary injunction should be issued rests entirely with the
movant.” Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995). To determine
whether the issuance of a preliminary injunction is appropriate, the court
considers the following factors:
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(1)
(2)
(3)
(4)

the threat of irreparable harm to the movant;
the state of balance between this harm and the injury that
granting the injunction will inflict on other parties litigant;
the probability that movant will succeed on the merits; and
the public interest.

Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). The
court asks “whether the balance of equities so favors the movant that justice
requires the court to intervene to preserve the status quo until the merits are
determined.” Id. at 113.
Although no single factor is determinative, “[f]ailure to show irreparable
harm is an independently sufficient ground upon which to deny a preliminary
injunction.” Watkins, 346 F.3d at 844. See also Dataphase, 640 F.2d at 114 n.9
(“[T]he absence of a finding of irreparable injury is alone sufficient ground for
vacating the preliminary injunction.”). To demonstrate irreparable harm,
plaintiffs must show that the harm is “certain, great and of such imminence
that there is a clear and present need for equitable relief.” Packard Elevator v.
Interstate Commerce Comm’n, 782 F.2d 112, 115 (8th Cir. 1986). Notably,
“plaintiff[s] must make a showing of actual, substantial harm resulting from
the alleged infringement.” Travelers Express Co. v. Transaction Tracking
Technologies, Inc., 305 F. Supp. 2d 1090, 1095 (D. Minn. 2003) (citation
omitted).
In the instant case, Cochrun alleges that defendants “have prevented
[him] form [sic] mailing documents to the Clerk of Courts for the Southern

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Division of the United States District Court,” and “have also denied
correspondence between [him] and his spouse Jamie Lynn Cochrun who is an
inmate incarcerated in the South Dakota Women’s Prison in Pierre, SD.”
Docket 62 at 1. As a result of such alleged infringements, Cochrun asserts that
he has been unable to make timely filings or conduct meaningful research. Id.
at 1–2. In fact, because defendants have limited Cochrun’s access to the law
library,2 Cochrun was unable to meet deadlines on two separate occasions, and
in each instance, Cochrun’s “filings were dismissed.” Id. at 2.
The court has reviewed Cochrun’s previous filings, including the four
actions brought by Cochrun prior to the instant action, and found only one
instance wherein Cochrun was denied review “for failure to prosecute.” Docket
67. That instance, however, occurred at the appellate level after Cochrun filed
the instant motion for preliminary injunction, and it did not result in dismissal
due to untimeliness. Rather, after vacating its initial denial of Cochrun’s
appeal, the Eighth Circuit Court of Appeals reviewed Cochrun’s case and
dismissed the appeal as interlocutory in nature. Docket 72; Docket 75. Beyond
this instance, there is no evidence to substantiate Cochrun’s claim. In the
absence of such evidence, the court finds that Cochrun has failed to
demonstrate actual, substantial harm resulting from the alleged infringement.

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Cochrun represents that his access to the prison law library is
restricted to one or two hours per day, five days a week. Docket 62 at 1.
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Because “[f]ailure to show irreparable harm is an independently sufficient
ground upon which to deny a preliminary injunction,” Watkins, 346 F.3d at
844, the court denies Cochrun’s motion for preliminary injunction.3
III.

The Court Denies Cochrun’s Motion for Appointment of Counsel.
“A pro se litigant has no statutory or constitutional right to have counsel

appointed in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir.
1998). In determining whether to appoint counsel to a pro se litigant’s civil
case, the district court considers the complexity of the case, the ability of the
indigent litigant to investigate the facts, the existence of conflicting testimony,
and the indigent's ability to present his claim. Id. In this case, the court has
denied the certification of a class, and the facts of Cochrun’s remaining claims
are not complex. Cochrun therefore appears able to adequately present his

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In the alternative, the court finds that Cochrun would not likely
succeed on the merits of the claims asserted in his motion for preliminary
injunction. First, insofar as Cochrun claims that his limited correspondence
with Jamie Lynn Cochrun violates his constitutional rights, the court notes
that “there is no absolute First Amendment right to communicate with other
inmates about legal or other matters.” Bear v. Kautzky, 305 F.3d 802, 805 (8th
Cir. 2002). Second, to the extent Cochrun claims that Jamie Lynn Cochrun’s
constitutional rights are being violated, the court reiterates a principal
emphasized in its screening order (Docket 22 at 7)—generally speaking, a
litigant cannot rest his claim to relief on legal rights or interests of third
parties. Powers v. Ohio, 499 U.S. 400, 410–11 (1991). Finally, with respect to
Cochrun’s claim related to the accessibility of the prison law library, there is no
“freestanding constitutional right to a particular number of hours in the prison
law library.” Entzi v. Redmann, 485 F.3d 998, 1005 (8th Cir. 2007) (citing Lewis
v. Casey, 518 U.S. 343, 351 (1996); Walker v. Mintzes, 771 F.2d 920, 932 (6th
Cir. 1985)).
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§ 1983 claims at this time, and his motion to appoint counsel (Docket 57) is
therefore denied.
IV.

The Court Grants Defendants’ Motion to Stay Discovery.
Defendants assert that Cochrun’s remaining claims are subject to

defendants’ qualified immunity defense, which defendants affirmatively alleged
in their answer. Docket 39 at 5; Docket 74. The doctrine of qualified immunity
protects prison officials from litigation itself, not merely liability. Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985). Consequently, both the Supreme Court and
the Eighth Circuit have “ ‘repeatedly . . . stressed the importance of resolving
immunity questions at the earliest possible stage in litigation.’ ” O’Neil v. City of
Iowa City, 496 F.3d 915, 917 (8th Cir. 2007) (quoting Saucier v. Katz, 533 U.S.
194, 201 (2001)). In light of defendants’ upcoming motion to resolve the issue
of qualified immunity, therefore, the motion to stay discovery is granted.
Defendants must submit a motion addressing the issue of qualified immunity
on or before July 12, 2013. Accordingly, it is
ORDERED that Cochrun’s motion for an order for certification of a class
(Docket 57) is denied.
IT IS FURTHER ORDERED that Cochrun’s motion for injunction and
restraining order (Docket 62) is denied.
IT IS FURTHER ORDERED that Cochrun’s motion for appointment of
counsel (Docket 57) is denied.

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IT IS FURTHER ORDERED that defendants’ motion to stay discovery
(Docket 73) is granted. Defendants must submit a motion addressing the issue
of qualified immunity on or before July 12, 2013.
IT IS FURTHER ORDERED that defendants’ motion for a protective order
(Docket 73) is denied as moot.
Dated June 11, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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