Wagner v. Marshall et al (INMATE1)
RECOMMENDATION of the Magistrate Judge that (1) the plaintiff's motion for class certification be denied; (2) this case be referred back to the Magistrate Judge for appropriate proceedings, Objections to R&R due by 9/4/2006. Signed by Judge Susan Russ Walker on 8/23/06. (sl, )
Wagner v. Marshall et al (INMATE1)
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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION QUENTIN WAGNER, Plaintiff, v.
D. T. MARSHALL, et al.,
) ) ) ) ) ) ) ) ) )
CASE NO. 2:06-CV-730-MHT [WO]
RECOMMENDATION OF THE MAGISTRATE JUDGE This is a 42 U.S.C. § 1983 action in which Quentin Wagner ["Wagner], an inmate confined in the Montgomery County Detention Facility, challenges the constitutionality of the Alabama Community Notification Act, Ala. Code 1975 § 15-20-20 et seq. (1975, as amended). In his complaint, Wagner seeks to proceed in this case on behalf of all other similarly situated inmates. The court therefore construes the complaint to contain a motion for class certification under Rule 23, Federal Rules of Civil Procedure. Upon consideration of the motion for class certification, the court concludes that this motion is due to be denied. Wagner is an indigent inmate who seeks to represent the interests of all inmates who are subject to the provisions of the Alabama Community Notification Act. Among the 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." Rule 23(a)(4), Federal Rules of Civil Procedure. The court concludes that Wagner will not be
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able to fairly represent the class. See Oxendine 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. Wis. 1983); Inmates, Washington County Jail v. England, 516 F.Supp. 132 (E.D. Tenn. 1980), affirmed, 659 F.2d 1081 (6th Cir. 1981). Class certification in this case is therefore improper. Thus, the plaintiff's motion for class certification is due to be denied. CONCLUSION Accordingly, 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 September 4, 2006 the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the
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District Court except upon grounds of plain error or manifest injustice.
Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. DONE, this 23rd day of August, 2006.
/s/ Susan Russ Walker SUSAN RUSS WALKER UNITED STATES MAGISTRATE JUDGE
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