United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
August 24, 2017, Plaintiff, a prisoner in custody at the
Tulsa County Jail and appearing pro se, filed a 42 U.S.C.
§ 1983 civil rights complaint (Dkt. # 1). Plaintiff also
filed motions to proceed in forma pauperis (Dkt. # 2), for
appointment of counsel (Dkt. # 3), and for class action
certification (Dkt. # 4). For the reasons discussed below,
Plaintiff's motion to proceed in forma pauperis shall be
granted and his motions for appointment of counsel and for
class action certification shall be denied. In addition, the
complaint shall be dismissed for failure to state a claim
upon which relief may be granted.
Motion to proceed in forma pauperis
review of the motion to proceed in forma pauperis, the Court
finds that Plaintiff is without funds in his institutional
account(s) sufficient to prepay the full filing fee required
to commence this action. Accordingly, Plaintiff is entitled
to proceed without prepayment of the filing fee and his
motion to proceed in forma pauperis shall be granted.
Pursuant to 28 U.S.C. §1915(b)(1), however, Plaintiff
shall be required to pay the full $350
filing fee as set forth hereafter.
shall pay the filing fee in monthly payments of 20 percent of
the preceding month's income credited to his prison
accounts until he has paid the total filing fee of
$350. 28 U.S.C. § 1915(b)(2). The Court
will enter an order directing the agency having custody of
Plaintiff to collect, when Plaintiff's prison account(s)
exceeds $10, and forward such monthly payments to the Clerk
of the Court until the filing fee is paid in full. 28 U.S.C.
Motions for class action certification and for appointment of
motion for class action certification shall be denied. A
court may not certify a class unless it determines “the
representative parties will fairly and adequately protect the
interests of the class.” Fed.R.Civ.P. 23(a)(4).
“When the court reviews the quality of the
representation under Rule 23(a)(4), it will inquire not only
into the character and quality of the named representative
party, but also it will consider the quality and experience
of the attorneys for the class.” 7A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure: Civil § 1769.1 (3d ed. 2005)
(footnote omitted). The Tenth Circuit has ruled that a
“litigant may bring his own claims to federal court
without counsel, but not the claims of others” because
“the competence of a layman is clearly too limited to
allow him to risk the rights of others.” Fymbo v.
State Farm Fire and Casualty Co., 213 F.3d 1320, 1321
(10th Cir. 2000) (internal quotation marks and citation
omitted); see also 7A Wright & Miller, Federal
Practice and Procedure: Civil § 1769.1 (citing cases for
rule that “class representatives cannot appear pro
se”). While Plaintiff may proceed in this action pro
se, he may not risk the rights of others in a class action.
For that reason, the Court denies Plaintiff's request
certification of a class action.
Court shall also deny Plaintiff's motion for appointment
of counsel. The Court has discretion to appoint an attorney
to represent an indigent plaintiff where, under the totality
of the circumstances, the denial of counsel would result in a
fundamentally unfair proceeding. McCarthy v.
Weinberg, 753 F.2d 836, 839-40 (10th Cir. 1985). The
Tenth Circuit Court of Appeals has stated that “if the
plaintiff has a colorable claim then the district court
should consider the nature of the factual issues raised in
the claim and the ability of the plaintiff to investigate the
crucial facts.” Rucks v. Boergermann, 57 F.3d
978, 979 (10th Cir. 1995) (citation and internal quotation
marks omitted). After reviewing the merits of Plaintiff's
case, the nature of the factual issues involved,
Plaintiff's ability to investigate the crucial facts, the
probable type of evidence, Plaintiff's capability to
present his case, and the complexity of the legal issues,
see Rucks, 57 F.3d at 979; McCarthy, 753
F.2d at 838-40; Maclin v. Freake, 650 F.2d 885,
887-89 (7th Cir. 1981), the Court denies Plaintiff's
motion for appointment of counsel.
Complaint fails to state a claim upon which relief may be
courts must engage in a preliminary screening of cases in
which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity. See 28
U.S.C. § 1915A(a). The court must identify any
cognizable claim and dismiss any claim which is frivolous,
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief. See 28 U.S.C. §
1915A(b); 28 U.S.C. § 1915(e)(2)(B). To avoid dismissal
for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a
complaint must present factual allegations, assumed to be
true, that “raise a right to relief above the
speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The complaint must
contain “enough facts to state a claim to relief that
is plausible on its face.” Id. at 570. A court
must accept all the well-pleaded allegations of the complaint
as true, even if doubtful in fact, and must construe the
allegations in the light most favorable to the plaintiff.
Id. at 555. However, “when the allegations in
a complaint, however true, could not raise a [plausible]
claim of entitlement to relief, ” the cause of action
should be dismissed. Id. at 558. Twombly
articulated the pleading standard for all civil actions.
See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). The
Court applies the same standard of review for dismissals
under 28 U.S.C. § 1915(e)(2)(B)(ii) that is employed for
Fed.R.Civ.P. 12(b)(6) motions to dismiss for failure to state
a claim. Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th
se plaintiff's complaint must be broadly construed under
this standard. Erickson v. Pardus, 551 U.S. 89, 94
(2007); Haines v. Kerner, 404 U.S. 519, 520 (1972).
The generous construction to be given the pro se
litigant's allegations “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).
Notwithstanding a pro se plaintiff's various mistakes or
misunderstandings of legal doctrines or procedural
requirements, “if a court can reasonably read the
pleadings to state a valid claim on which the plaintiff could
prevail, it should do so . . . .” Id. A
reviewing court need not accept “mere conclusions
characterizing pleaded facts.” Bryson v. City of
Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990); see
also Twombly, 550 U.S. at 555 (“While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”
(quotations and citations omitted)). The court “will
not supply additional factual allegations to round out a
plaintiff's complaint or construct a legal theory on a
plaintiff's behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Causes of action raised in the complaint
Court finds that the complaint fails to state a claim upon
which relief could be granted. Plaintiff describes the nature
of the case as follows: “Tulsa County Public Defenders
Office and court appointed counsel(s) fail to provide
effective assistance of counsel to indigent defendants and
the State court fails to provide remedy to address the issue.
Tulsa County District Attorneys deny equal protection in