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Chambers v. Roberts

United States District Court, Tenth Circuit

December 18, 2013

CODY LEE CHAMBERS, et al., Plaintiffs,
RAY ROBERTS, Kansas Secretary of Corrections, et al., Defendants.


Sam A. Crow U.S. Senior District Judge

This civil complaint was filed pursuant to 42 U.S.C. § 1983 by three inmates of the Lansing Correctional Facility, Lansing, Kansas. Having examined all materials filed, the court finds that two plaintiffs are improperly joined and dismisses their claims. The remaining plaintiff is required to satisfy the filing fee prerequisites and to cure the deficiencies in the complaint that are set forth in this order


The complaint is entitled “Pro se Class Action.” However, no adequate motion for class certification was filed. Nor do plaintiffs’ “Class Action Allegations” within their complaint show that they meet the prerequisites for class certification under Rule 23(a) of the Federal Rules of Civil Procedure.[1] Plaintiffs make bald allegations that they satisfy the numerosity, commonality and typicality prerequisites to class action status. However, pursuant to Rule 23(a)(4), a party moving for class certification must also show that the representative party can “fairly and adequately protect the interests of the class.” Id. “Due process requires that the Court ‘stringently’ apply the competent representation requirement because class members are bound by the judgment (unless they opt out), even though they may not actually be aware of the proceedings.” Lile v. Simmons, 143 F.Supp.2d 1267, 1277 (D.Kan. 2001)(quoting Albertson’s, Inc. v. Amalgamated Sugar Co., 503 F.2d 459, 463–64 (10th Cir. 1974)). Where, as here, class certification is sought by pro se litigants, it is typically denied because a layperson does not have the requisite legal training and expertise necessary to protect the interests of the class. See, e.g., Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000); see also Harris v. Correction Management Afiliates, Inc., 92 F.3d 1196, *1 (10th Cir. 1996)(unpublished) [2](“Courts are reluctant to certify a class represented by a pro se litigant because a layman representing himself is considered ‘to be clearly too limited to allow him to risk the rights of others.’”)(quoting Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)); Liles, 143 F.Supp.2d at 1277 (accord)(citing 7A Charles A. Wright, et al., Federal Practice and Procedure § 1769.1 n. 12). A prisoner litigant “may bring his own claims to federal court without counsel, but not the claims of others.” Fymbo, 213 F.3d at 1321 (citing Oxendine, 509 F.2d at 1407). Because the threshold requirements of Fed.R.Civ.P. 23(a) are not satisfied, plaintiff’s request for class action status is denied.

For similar reasons, the court finds that plaintiffs do not satisfy Rule 20 of the Federal Rule of Civil and may not be permitted to bring this action jointly. Rule 20(a)(1) governs when multiple plaintiffs may bring a joint action:

Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.

Id. Although plaintiffs assert violation of their Native American religious freedoms under the same “general theories of law, ” this alone is not enough to satisfy the “same transaction or occurrence” test of Rule 20(a). See Worthen v. Oklahoma Dept. of Corrections, 2007 WL 4563665 (W.D. Okla. 2007)(quoting Aaberg v. ACandS Inc., 152 F.R.D. 498, 500 (D.Md. 1994)(“A complaint that does not attempt “individualization or description of the particular circumstances . . . of the individual plaintiffs . . . [does] not satisfy the ‘same transaction or occurrence’ test of Fed.R.Civ.P. 20(a).”)).

In the instant complaint, no facts are provided regarding the individual claims of each plaintiff such as the dates of personal requests for more frequent access to a sweat lodge, pipe, and tobacco or the names of the persons denying individual requests and the reasons given. Moreover, each plaintiff must satisfy the filing fee and exhaustion prerequisites. In addition, each plaintiff’s claim will require a distinct analysis with respect to the statute of limitations and the alleged harm suffered. Furthermore, there are evident “impracticalities associated with multiple-plaintiff prisoner litigation that mitigate against permissive joinder.” See Proctor v. Applegate, 661 F.Supp.2d 743, 780 (E.D. Mich. 2009). Among the difficulties noted are the need for each plaintiff to sign every pleading, that prisoners may seek to compel prison authorities to permit them to gather to discuss the joint litigation, that pleadings may be filed on behalf of plaintiffs without their consent, and that routine transfers may make joint litigation difficult. Id.

The court concludes that joint litigation of plaintiffs’ claims would not be proper and accordingly dismisses the claims of Mr. Chambers and Mr. Plaster without prejudice. Mr. Chambers’ claims are dismissed as improperly joined and because his claims for injunctive relief are moot due to his transfer out of the LCF. See McAlpine v. Thompson, 187 F.3d 1213, 1218 (10th Cir. 1999). Mr. Plaster’s claims are dismissed from this action as improperly joined. In order for Mr. Plaster to proceed on his claims he must file his own separate complaint, and in that action he must satisfy the fees for filing a complaint in federal court. This action proceeds with Mr. Swisher as the only plaintiff.


Plaintiff Swisher has filed a Motion for Leave to Proceed without Prepayment of Fees (Doc. 5). However, this motion is incomplete. 28 U.S.C. § 1915 requires that a prisoner seeking to bring a civil action without prepayment of fees submit a “certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing” of the action Aobtained from the appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2). The “Inmate Banking Transaction History” provided by plaintiff is not a certified statement of all transactions in his inmate account and includes no balances. This action may not proceed until plaintiff provides the financial information required by federal law. He will be given time to do so, and is warned that if he fails to comply with the provisions of 28 U.S.C. § 1915, this action may be dismissed without further notice. Mr. Swisher is reminded that under 28 U.S.C. § 1915(b)(1), being granted such leave will not relieve him of the obligation to pay the full fee for filing a civil action. Instead, it merely entitles him to pay the fee over time through payments deducted automatically from his inmate trust fund account as authorized by 28 U.S.C. § 1915(b)(2).[3]


As Count I in the complaint, plaintiff claims that defendants violated the First Amendment free exercise of religion clause. As facts in support, he alleges as follows. Defendants continually deny plaintiff access to a Sweat Lodge once a week, which is his church, and a Personal Prayer Pipe and Sacred Tobacco to pray with daily. Defendants “refuse to recognize beadwork and leathercraft as Native American spirituality.” As Count II, plaintiff claims that defendants violated the “American Indian Religious Freedom Act, 42 U.S.C. §§ 2000CC, 2000cc-2 by means of use of the Religious Freedom Restoration Act” and cites 42 U.S.C. §§ 2000bb, 2000bb-1.[4] As factual support, he alleges that defendants have refused his requests for “religious ceremonies within the least restrictive means.” Plaintiff asserts that the “Department of Justice, Bureau of Prisons has clearly established” that this request is “accomidatible (sic) within least restrictive means in an institutional setting.” Plaintiff alleges that conducting a Sweat Lodge once a week and praying with a pipe “are easily practible (sic).” As Count III, plaintiff claims that defendants violated Fourteenth Amendment due process. In support, he alleges that the “entire facility and Department of Corrections refuses to properly handle and answer” any grievances and appeals on religious accommodation.

Plaintiff seeks a declaration that his rights have been violated and injunctive relief requiring the Kansas Department of Corrections (KDOC) to change their current policies and procedures on Native American religion “to a less restrictive means and to policies more similar to Federal Bureau of Prisons.” He specifically asks the court to order ...

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