Burnett v. Alabama Pardon & Paroles et al (INMATE2)

Filing 11

REPORT AND RECOMMENDATIONS that Plaintiff's 8 MOTION to Certify Class be DENIED; and this case be referred back to the undersigned for further proceedings. Objections to R&R due by 2/18/2008. Signed by Judge Terry F. Moorer on 2/4/2008. (dmn)

Burnett v. Williams et al (INMATE2)

Doc. 11

Case 2:08-cv-00022-WKW-TFM

Document 11

Filed 02/04/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ____________________________ BERNIES BURNETT, #132 146 Plaintiff, v. * * * 2:08-CV-22-WKW (WO)

ALABAMA PARDONS & PAROLES, * et al., Defendants. * ____________________________ RECOMMENDATION OF THE MAGISTRATE JUDGE Before the court is Plaintiff's request for class certification of this action. The court construes the request as a motion to certify class under Rule 23, Federal Rules of Civil Procedure. Upon consideration of the motion to certify case as a class action, the court concludes that this motion is due to be denied. In this 42 U.S.C. § 1983 action, Plaintiff, a state inmate, challenges the policies and procedures associated with parole eligibility, parole suitability, and parole consideration, which he maintains are unconstitutional. Plaintiff seeks to represent the interests of other inmates denied parole. 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 Plaintiff will not be able to fairly represent the class. See Oxendine v. Williams, 509 F.2d

Dockets.Justia.com

Case 2:08-cv-00022-WKW-TFM

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Filed 02/04/2008

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1405 (4 th 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. 1983); Inmates, Washington County Jail v. England, 516 F.Supp. 132 (E.D. Tenn. 1980), affirmed, 659 F.2d 1081 (6 th Cir. 1981). Further, the court finds that the prosecution of separate civil actions will not create a risk of inconsistent or varying adjudications with respect to any general claims for relief. Rule 23(b)(1)(A), Federal Rules of Civil Procedure. Additionally, the questions of fact common to proposed class members do not predominate over such questions affecting projected individual members. Rule 23(b)(3), Federal Rules of Civil Procedure. Thus, Plaintiff's motion to certify this case as a class action is due to be denied. Accordingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. Plaintiff's motion for class certification (Doc. No. 8) be DENIED; and 2. This case be referred back to the undersigned for further proceedings. It is further ORDERED that on or before February 18, 2008 the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which a party objects. 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

Case 2:08-cv-00022-WKW-TFM

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attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v.

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 4th day of February 2008.

/s/Terry F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE