Broach v. Riley et al (INMATE1)

Filing 4

REPORT AND RECOMMENDATIONS re MOTION to Certify Class filed by Tony Curtis Broach, it is the Mag Judge that: 1) The plaintiff's motion for class certification 1 be denied; 2) This case be referred back to the undersigned for appropriate proceedings Objections to R&R due by 3/27/2006. Signed by Judge Delores R. Boyd on 3/14/06. (vma, )

Broach v. Riley et al (INMATE1)

Doc. 4

Case 2:06-cv-00228-WHA-TFM

Document 4

Filed 03/14/2006

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION T O N Y C. BROACH, #136351, Plaintiff, v. ) ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 2:06-CV-228-WHA [W O ]

BOB RILEY, et al., Defendants.

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is is a 42 U.S.C. § 1983 action in which Tony C. Broach ["Broach"], a state in m a te , challenges the procedures undertaken by the Alabama Board of Pardons and Paroles d u rin g the parole consideration process. In the complaint, Broach seeks to proceed on behalf o f "all other similarly situated" inmates in the Alabama prison system. Plaintiff's Complaint a t 8. The court therefore construes the complaint to contain a motion for class certification u n d er Rule 23, Federal Rules of Civil Procedure. Upon review of the motion for class c e rtific a tio n , the court 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 in A lab a m a state prison who have reached a parole eligibility date without receiving the parole h ea rin g mandated by" applicable administrate regulations. Plaintiff's Complaint at 8. A m o n g the requirements which litigants must meet in order to maintain an action as a class a c tio n is that the "representative parties will fairly and adequately protect the interests of the

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Case 2:06-cv-00228-WHA-TFM

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Filed 03/14/2006

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class." Rule 23(a)(4), Federal Rules of Civil Procedure. The court concludes that the pro s e prisoner plaintiff is not an adequate class representative able to fairly represent the class. S e e Oxendine v. Williams, 509 F.2d 1405 (4th Cir. 1975); Hummer v. Dalton, 657 F.2d 621 (4 th Cir. 1981); Ethnic Awareness Organization v. Gagnon, 568 F.Supp. 1186 (E.D. Wis. 1 9 8 3 ); Inmates, Washington County Jail v. England, 516 F.Supp. 132 (E.D. Tenn. 1980), a ffir m e d , 659 F.2d 1081 (6th Cir. 1981). Class certification in this case is therefore

im p ro p e r. Thus, Broach's motion for class certification is due to be denied. C O N C L U SIO N A c c o rd in gly, 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 March 27, 2006 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 a gis tra te 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 th a t this Recommendation is not final order of the court and, therefore, it is not appealable.

F a ilu re to file written objections to the proposed findings and advisements in the

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Case 2:06-cv-00228-WHA-TFM

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Filed 03/14/2006

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M a gis tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c kin g on appeal factual findings in the Recommendation accepted or adopted by the D is t r i c t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in wr ig 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, e n banc), adopting as binding precedent all of the decisions of the former Fifth Circuit h a n d e d down prior to the close of business on September 30, 1981. D o n e this 14 th day of March, 2006.

/s / Delores R. Boyd D E LO R E S R. BOYD U N IT E D STATES MAGISTRATE JUDGE

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