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Ritchie v. Hulihan

July 22, 2008

SETH RITCHIE, PLAINTIFF,
v.
WILLIAM HULIHAN, SUPERINTENDENT; KAREN PHILLIPS, DEPUTY SUPERINTENDENT OF PROGRAMS; DAVID WIERNICKI, HOUSING LIEUTENANT; JACK MCDANIELS, DEPUTY SUPERINTENDENT; NEIL GARZA, SERGEANT; GEORGE MARTIN, WATCH COMMANDER/LIEUTENANT; DEBORAH HENSLEY AND CHAD BALDWIN, CORRECTION OFFICERS; ET AL., DEFENDANTS.



The opinion of the court was delivered by: David N. Hurd United States District Judge

DECISION and ORDER

I. Introduction

Pro se plaintiff Seth Ritchie ("plaintiff" or "Ritchie"), has filed a civil rights complaint, together with an application to proceed in forma pauperis. Plaintiff, is currently incarcerated at Mid-State Correctional Facility ("Mid-State"). He has also filed a motion seeking a temporary restraining order and preliminary injunctive relief. Dkt. No. 4.

Plaintiff states that he arrived at Mid-State on May 12, 2008, having previously been incarcerated at Elmira Correctional Facility. Dkt. No. 1 at 4.*fn1 In his complaint, plaintiff asserts numerous claims regarding the alleged violation of his constitutional rights at Mid-State during the period May 12, through June 29, 2008. He also asserts claims relating to parole proceedings conducted in February 2008. Id. at 12-15. Forty-nine individuals are named as defendants. For a complete statement of plaintiff's claims, reference is made to the complaint.

II. Request for Class Action Status

Plaintiff seeks to have this action certified as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Dkt. No. 1 at 3. A party seeking to certify a class bears the burden of establishing the prerequisites of Rule 23. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997); Caridad v. Metro-North Commuter RR, 191 F.3d 283, 291 (2d Cir.1999), cert. denied 120 S.Ct. 1959 (2000). In accordance with Rule 23, one or more members of a class may sue as representative parties on behalf of all similarly situated individuals only if: (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. Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) (citing Fed.R.Civ.P. 23(a)). All four of these requirements must be satisfied for a court to properly certify a proceeding as a class action.

The Second Circuit has ruled that a prisoner proceeding pro se cannot adequately protect the interests of the class. Phillips v. Tobin, 548 F.2d 408, 410 (2d Cir. 1976). In Phillips, the Court stated that it is plain error to permit a prisoner who is unassisted by counsel to bring a class action on behalf of fellow inmates. Id. (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)).

Thus, plaintiff's request for class certification is denied. Unless and until plaintiff retains counsel, and counsel enters an appearance and brings a formal motion seeking class certification, this action shall be considered only as an action brought by plaintiff on his behalf.

III. In Forma Pauperis Status

Where a plaintiff seeks leave to proceed in forma pauperis, the Court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without prepaying the $350.00 filing fee in full. The Court must also consider whether the causes of action stated in the complaint are, inter alia, frivolous or malicious; or if they fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b)(1).

A. Economic Need

In this case, plaintiff has demonstrated economic need and has filed the inmate authorization form required in this District.

B. Sufficiency of the Complaint

Turning to the second inquiry, 28 U.S.C. ยง 1915(e), as amended, ...


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