Foy v. Riley et al

Filing 4

REPORT AND RECOMMENDATION re MOTION to Certify Class filed by Leon Foy; that the motion be denied and this case referred back to the Mag. Judge for appropriate proceedings; Objections to R&R due by 10/27/2005. Signed by Judge Vanzetta P. McPherson on 10/13/05. (ajr, )

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Foy v. Riley et al Doc. 4 Case 2:05-cv-00946-MEF-WC Document 4 Filed 10/13/2005 Page 1 of 3 IN THE DISTRICT COURT OF THE UNITED STATES F OR THE MIDDLE DISTRICT OF ALABAMA N O R T H E RN DIVISION L E O N FOY, #125322, Plaintiff, v. ) ) ) ) ) ) ) ) ) ) CI V I L ACTION NO. 2:05-CV-946-F [WO] BO B RILEY, et al., Defendants. R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE This is a 42 U.S.C. 1983 action in which Leon Foy ["Foy"], a state inmate, challenges the conditions of confinement within the Alabama prison system. The plaintiff s e e k s to proceed before this court in a class action. Plaintiff's Complaint at 5. The court therefore construes the complaint to contain a motion for class certification under Rule 23, F e d e r a l Rules of Civil Procedure. Upon review of the motion for class certification, the c o u r t concludes that this motion is due to be denied. T h e plaintiff is an inmate who seeks to represent the interests of all inmates confined with in correctional facilities operated by the Alabama Department of Corrections. Among t h e requirements which litigants must meet in order to maintain an action as a class action is that the "representative parties will fairly and adequately protect the interests of the class." Ru le 23(a)(4), Federal Rules of Civil Procedure. The court concludes that the pro se p r i s o n er plaintiff is not an adequate class representative able to fairly represent the class. See Case 2:05-cv-00946-MEF-WC Document 4 Filed 10/13/2005 Page 2 of 3 O x e n d i n e v. Williams, 509 F.2d 1405 (4th Cir. 1975); Hummer v. Dalton, 657 F.2d 621 (4th Cir. 1981); Ethnic Awareness Organization v. Gagnon, 568 F.Supp. 1186 (E.D. W i s . 1983); I n m a t e s , Washington County Jail v. England, 516 F.Supp. 132 (E.D. Tenn. 1980), affirmed, 6 5 9 F.2d 1081 (6th Cir. 1981). Class certification in this case is therefore improper. Thus, t h e plaintiff's motion for class certification is due to be denied. C O N C L U S IO N Ac cord ingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. The plaintiff's motion for class certification be DENIED. 2. This case be referred back to the undersigned for appropriate proceedings. It is further ORDERED that on or before October 27, 2005 the parties may file objections to the R e c o m m e n d a t i o n . Any objections filed must specifically identify the findings in the M agistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised t h a t this Recommendation is not a final order of the court and, therefore, it is not appealable. Failu re to file written objections to the proposed findings and advisements in the M agistrate Judge's Recommendation shall bar the party from a de novo determination by the D i s t r ic t Court of issues covered in the Recommendation and shall bar the party from a tt a c ki n g on appeal factual findings in the Recommendation accepted or adopted by the 2 Case 2:05-cv-00946-MEF-WC Document 4 Filed 10/13/2005 Page 3 of 3 D i s t r ic t Court except upon grounds of plain error or manifest injustice. Nettles v. W a i n w r i g h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. D o n e this 13th day of October, 2005. / s / Vanzetta Penn McPherson UNITED STATES MAGISTRATE JUDGE 3

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