Powers et al v. Clay et al
Filing
53
OPINION AND ORDER DENYING CLASS CERTIFICATION. Plaintiffs' motion for class certification 2 is DENIED.(Signed by Magistrate Judge Brian L Owsley) Parties notified.(mserpa, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
MICHAEL K. POWERS, ET AL.
v.
DIANA K. CLAY, ET AL.
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C.A. NO. V-11-051
OPINION AND ORDER DENYING CLASS CERTIFICATION
This civil rights action was filed by seven state prisoners pursuant to 42 U.S.C. § 1983.
Plaintiffs Michael K. Powers, Richard Stricklin II, Gary J. Hunter, Phillip Critchley, Joseph
Porter, Ronald J. Keough, and John Jason Everett are inmates in custody at the Stevenson Unit in
Cuero, Texas. (D.E. 1, at 1-2). They filed this action against Defendants, who are correctional
officials working at the Stevenson Unit, for violating their Eighth Amendment rights and
unlawfully retaliating against them for the misconduct of other inmates. Id. at 10, 14. Plaintiffs
submitted a memorandum in support of class certification, which the Court has construed as a
motion for class certification. (D.E. 2). For the reasons stated herein, Plaintiffs’ motion for class
certification is denied.
I. JURISDICTION
The Court has federal question jurisdiction over this civil rights action pursuant to 28
U.S.C. § 1331. Upon consent of all Plaintiffs, (D.E. 23, 24), the action was re-assigned to a
United States Magistrate Judge to conduct all further proceedings, including entry of final
judgment. (D.E. 25); see also 28 U.S.C. § 636(c).
II. FACTUAL BACKGROUND
On April 6, 2010, at 9:00 a.m., correctional officers entered the J3 building at the
Stevenson Unit and ordered the prisoners to exit out of the building. (D.E. 1, at 4). They were
told to take nothing with them except “shirt, pants, shoes and i.d.’s.” Id. Plaintiffs recounted
that it was apparent to “veteran offenders” that a drug search was being conducted on G, H, and I
dorms using drug-sniffing dogs. Id. In the D-space, officers were searching the exiting inmates
and confiscating any materials except the allowed clothing. Id. at 4-5. Around 150 to 200
prisoners were then forced to sit outside on a concrete slab for hours with inadequate
medications, water, toilet, or protection from the sun. Id. at 5-10. During the inspection, Officer
Kenneth Wilson was deployed with a gas gun to intimidate prisoners into compliance. Id. at 8.
After the inmates were returned to their cells, many requested to go to the infirmary for
their sunburns. Id. at 9. The guards took their names down, but they were not taken to the
infirmary until the following morning. Id. In addition, the inmates of J3 were confined to their
cells and placed on lock-down because some of the inmates had “cat-called” at the officers when
they were all outside. These inmates did not get to take showers or have recreation. Id. at 10.
When grievances were filed about the retaliation, Warden Bright allegedly lied and said that the
entire region was on lock-down that day due to an escape at the Briscoe Unit. Id.
The following morning, several nursing stations were set up within the unit to check
prisoners complaining of injuries from the day before. Id. However, the nurses treated all the
inmates the same, simply spraying a sunburn coolant on their skin. Id. Some of the inmates,
observing that the treatment was the same for all, requested the ranking officer Norman Saenz
take pictures of their injuries. Id. at 9-10. Officer Saenz refused to take pictures, despite
Administrative Directive 3.47, which requires pictures be taken to document alleged injuries. Id.
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III. PROCEDURAL BACKGROUND
Numerous inmates, including Plaintiffs, filed Step 1 grievances about the incident. Id. at
10. Warden Bright responded to each grievance with the following reply:
It is standard operating procedure during a building search to
empty the cells during the search utilizing the recreation yard for
offenders due to being a secure area. The west side of the unit (BBuilding, J4, J5, J3, J2, J1 and gym) was without water due to a
water leak; J-3 Building offenders were not being singled out. The
entire Region was racked up on April 6th due to an escape at the
Briscoe Unit. No further action warranted.
Id. at 11. Certain inmates also filed Step 2 appeals. As to Plaintiffs Hunter and Stricklin,
defendant J.M. Garcia offered the following, identical response:
Your complaint has been noted and appropriately addressed at step
one. Only issues related directly to you will be addressed in this
response. There is no evidence you were deprived of water, you
were released for chow where you received food and water/tea. At
no time were you told you could not have water. Temperatures
were in an acceptable range, 71 degrees to 79 degrees. Medical
indicated redness to lower arms, face and neck. No further action
warranted.
(D.E. 12-1, at 2; D.E. 13-1, at 2). Other inmates, including Plaintiffs Powers and Porter,
received similar responses to their Step 2 grievances. (D.E. 1, at 12; D.E. 11-1, at 2; D.E. 15-1,
at 2).
On September 26, 2011, the seven Plaintiffs filed their original complaint. (D.E. 1). On
that same day, they also filed a motion for appointment of counsel, (D.E. 3), and a memorandum
in support of a motion for class certification. (D.E. 2). Plaintiffs Powers, Hunter, Keough, and
Critchley filed motions to proceed in forma pauperis, (D.E. 18-21), and those motions were
granted. (D.E. 29-32). Notices of deficient pleading were sent to Plaintiffs Everett, Porter, and
Stricklin. (D.E. 26-28). Plaintiffs Porter and Stricklin subsequently both filed motions to
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proceed in forma pauperis, (D.E. 41, 50), which were subsequently granted. (D.E. 43, 51). The
motion for appointment of counsel was then denied on November 3, 2011. (D.E. 33). On
November 9, 2011, Plaintiff Powers filed an objection to the Court protesting the imposition of
filing fees against each individual plaintiff. (D.E. 39).
IV. DISCUSSION
Rule 23 of the Federal Rules of Civil Procedure governs the maintenance of a class
action. The Supreme Court recently explained the process of obtaining class certification:
Under Rule 23(a), the party seeking certification must
demonstrate, first, that:
(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 representative parties will fairly and adequately
protect the interests of the class”....
Second, the proposed class must satisfy at least one of the three
requirements listed in Rule 23(b).
Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S. Ct. 2541, 2548 (2011) (quoting Fed. R. Civ.
P. 23(a)). Denial of class certification is warranted if any of these requirements are not satisfied.
Plaintiffs have the burden of proof in establishing that all four requirements are satisfied. Berger
v. Compaq Computer Corp., 257 F.3d 475, 479 n.4 (5th Cir. 2001) (citations omitted).
It is apparent from the record that Plaintiffs cannot satisfy the adequacy requirement in
Rule 23(a)(4). The Fifth Circuit interprets the adequacy requirement to “require the class
representatives to possess a sufficient level of knowledge and understanding to be capable of
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‘controlling’ or ‘prosecuting’ the litigation.” Id. at 482-83.1 In accordance with this
understanding, courts have prohibited pro se prisoner class actions from proceeding for fear that
“the competence of a layman representing himself [is] clearly too limited to allow him to risk the
rights of others.” Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (citing Anderson
v. Moore, 372 F.2d 747, 751 n.5 (5th Cir. 1967)). As a consequence, it would be “plain error to
permit [an] imprisoned litigant who is unassisted by counsel to represent his fellow inmates in a
class action.” Id. (citation omitted); see also Caputo v. Fauver, 800 F. Supp. 168, 170 (D.N.J.
1992) (“Every court that has considered the issue has held that a prisoner proceeding pro se is
inadequate to represent the interests of his fellow inmates in a class action.”) (citations omitted);
Washington v. Louisiana, No. 09-3186, 2009 WL 2015556, at *1 n.1 (E.D. La. June 30, 2009)
(unpublished) (prisoner-plaintiff’s pro se status rendered him incapable of satisfying the Rule
23(a)(4) adequacy requirement) (citing Oxendine and Anderson).
Plaintiffs in this action sought the appointment of counsel for this class. Because the
motion for appointment of counsel was denied, Plaintiffs will be unable to satisfy the Rule
23(a)(4) adequacy requirement by proceeding pro se. Accordingly, class certification is denied.2
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Similarly, the Sixth Circuit has found that the Rule 23(a)(4) adequacy requirement is satisfied if (1) the
representative class members have common interests with the unnamed class members, and (2) these
“representatives will vigorously prosecute the interests of the class through qualified counsel.” In re American Med.
Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996) (quoting Senter v. Gen. Motors Corp., 532 F.2d 511, 525 (6th Cir.
1976))
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Plaintiff Powers’ objection to the imposition of individual filing fees on each party member lacks a legal
basis. (D.E. 39). The Prison Litigation Reform Act (“PLRA”) requires each prisoner plaintiff to pay the court filing
fee regardless of whether prisoners join in one action or each file an individual action. See 28 U.S.C. § 1915(b)(1)
(“if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full
amount of a filing fee”); Boriboune v. Berge, 391 F.3d 852, 854-56 (7th Cir. 2004) (the PLRA obliges prisoners in a
joint action seeking to proceed in forma pauperis to pay one filing fee per prisoner, rather than splitting one filing
fee); Hubbard v. Haley, 262 F.3d 1194, 1197-98 (11th Cir. 2001) (PLRA did not permit group of prisoners
proceeding in forma pauperis in § 1983 action against correction officials to join claims and thereby divide single
mandatory filing fee among them, regardless of prisoners’ contention that federal joinder rule governed and that their
claims arose out of the same transaction or occurrence and involved common questions of law). Accordingly,
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V. CONCLUSION
Plaintiffs have failed to demonstrate that the prerequisites for maintaining a class action have
been met. Therefore, Plaintiffs’ motion for class certification is DENIED.
ORDERED this 8th day of December 2011.
____________________________________
BRIAN L. OWSLEY
UNITED STATES MAGISTRATE JUDGE
Plaintiffs must each pay the full amount of the filing fee.
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