110 F.R.D. 177 | S.D.W. Va | 1986
MEMORANDUM OPINION AND ORDER
This day the Court having considered solely
The Court, however, chooses to address the motion for class certification. In passing on this issue the Court has scrutinized Plaintiff’s complaint very thoroughly. In her demand for relief she seeks in addition to damages and declaratory judgment that the Court issue “preliminary and permanent injunction against the Defendants, their successors in office, agents and employees and all other persons in active concern [sic] with them enjoining ... any delays and deprivation of the halfway house unless and until written standards and criteria are promulgated for determining the propriety and procedures upon arrival at the prison to inmates to for transfer to halfway house.” She elaborates and seeks a further mandatory order from the Court to the effect as follows: “Every inmate about to be transferred is given written notice of eligibility or reason for denial of halfway house placement in addition to seeking an order to immediately place the
Turning as it must to the jurisdictional basis for this action, the Court notes that there are no facts alleged which satisfy this Court’s limited subject matter jurisdiction pursuant to 42 U.S.C. § 1983, as this action has been characterized by the Plaintiff in her pleadings. An action against federal officials is not maintainable under 42 U.S.C. § 1983. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). Nevertheless this Court may have subject matter jurisdiction granted by the federal common law and pursuant to 28 U.S.C. § 1331 to award damages and perhaps other relief occasioned by constitutional torts, that is, by infringements of Plaintiff’s constitutionally protected interests through the actions or inactions of federal officials. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971): Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). Although it would require amendment and an action brought directly against the United States rather than the named Defendants herein, Plaintiff may have a cause of action for negligent acts or omissions of federal employees if tortious under the law of West Virginia as authorized by 28 U.S.C. §§ 1346, 2671-80, the latter being the Federal Tort Claims Act. Norton v. U.S., 581 F.2d 390 (4th Cir.1978); see U.S. v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). In addition, in certain situations federal prisoners may avail themselves of 28 U.S.C. § 2241 to make a habeas corpus challenge when presenting substantial claims concerning conditions of confinement. See Willis v. Ciccone, 506 F.2d 1011, 1014 (8th Cir.1974); Light v. U.S., 430 F.2d 932 (5th Cir.1970). Plaintiff is cautioned, however, that inmates must exhaust available administrative remedies before filing either a claim under the Federal Tort Claims Act or a § 2241 petition. See 28 U.S.C. § 2675 (exhaustion requirement under the Federal Tort Claims Act); Mason v. Ciccone, 531 F.2d 867 (8th Cir.1976) (exhaustion is required prior to filing a § 2241 petition if the administrative procedures are expeditious and provide a real possibility for relief). Finally, under very limited circumstances, 28 U.S.C. § 1361 may confer jurisdiction to a federal court to employ the remedy of mandamus for federal prisoner actions to enforce constitutional and statutory duties that are clear and free from doubt. Holmes v. U.S. Board of Parole, 541 F.2d 1243 (7th Cir.1976) (prisoner classification), overruled on other grounds, Solomon v. Benson, 563 F.2d 339 (7th Cir. 1977); Kahane v. Carlson, 527 F.2d 492 (2d Cir.1975). Mandamus, however, is an extraordinary writ that will be granted by a court only if all other relief is unavailable. See Ex Parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947).
With the above legal principles, it is possible that Plaintiff may be entitled to some relief in this Court. That, however, remains to be developed by further pleadings and the Court directs the Plaintiff, if she wishes to pursue all aspects of her
The Clerk is ORDERED to issue process pursuant to Rule 4 of the Federal Rules of Civil Procedure, serving the Defendants and the United States Attorney for the Southern District of West Virginia with a copy of the complaint and this Memorandum Opinion and Order.
The Defendants are ORDERED, when making answer to the complaint, to accompany such answer and/or other responsive pleadings with any records, statutory duties or obligations, or obligations placed upon them by regulation which would fully answer and provide justification for the actions they are alleged to have taken in respect to the Plaintiff. The Court is particularly interested in Defendants’ views concerning their obligations or discretionary decisions attendant to the referral of any inmate to a community treatment center or halfway house for the final months of her incarceration.
. Although class actions may be appropriate in some inmate initiated cases, see and compare Kirby v. Blackledge, 530 F.2d 583 (4th Cir.1976), a class should not be certified where a pro se litigant seeks to represent a class. Oxendine v. Williams, 509 F.2d 1405 (4th Cir.1975). The Court, however, should allow a petitioner to state individual claims or, in its discretion, appoint counsel to represent a viable class. See for example, Johnson v. Levine, 450 F.Supp. 648 (D.Md.1978); Nelson v. Collins, 455 F.Supp. 727 (D.Md.1978).