Alverson v. Cummins et al (INMATE 1)

Filing 12

REPORT AND RECOMMENDATION of the Magistrate Judge that the plf's 9 MOTION to Certify Case as a Class Action be DENIED; Objections to R&R due by 4/13/2009. Signed by Honorable Terry F. Moorer on 3/27/2009. (wcl, )

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 R O D N E Y ALVERSON, #132431, Plaintiff, v. ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:09-CV-81-WHA [W O ]

JO H N CUMMINS, 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 Rodney Alverson ["Alverson"], a state in m a te, challenges actions of correctional officials at the Easterling Correctional Facility with re sp e c t to conditions of confinement at Easterling, being slapped on the back of the head by a riot officer, the denial of visitation to family members, the lack of access to tobacco p ro d u c ts, and denial of adequate treatment for mental and medical conditions associated with h is nicotine withdrawals. In his complaint, Alverson seeks to proceed on behalf of "all p re se n t and future inmates of Easterling Correctional Facility." Plaintiff's Amended

C o m p l a in t - Court Doc. No. 9 at 1. The court construes this request as a motion to certify c la s s 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. A lv e rs o n is a a pro se inmate unschooled in the law who seeks to represent the in te re sts of all inmates affected by the actions about which he complains. Among the re q u ire m e n ts which litigants must meet in order to maintain an action as a class action is that

th e "representative parties will fairly and adequately protect the interests of the class." Rule 2 3 (a )( 4 ), Federal Rules of Civil Procedure. While a pro se inmate may "plead and conduct" h is own claims in federal court, 28 U.S.C. § 1634, he has no concomitant right to litigate the c laim s of other individuals. The competence of a layman is "clearly too limited to allow him t o risk the rights of others." Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); H u m m e r v. Dalton, 657 F.2d 621 (4th Cir. 1981); Ethnic Awareness Organization v. Gagnon, 5 6 8 F.Supp. 1186 (E.D. Wis. 1983); Inmates, Washington County Jail v. England, 516 F .S u p p . 132 (E.D. Tenn. 1980), affirmed, 659 F.2d 1081 (6th Cir. 1981). Moreover, the c o u rt finds that the prosecution of separate civil actions will not create a risk of inconsistent o r varying adjudications with respect to any general claims for relief. Rule 23(b)(1)(A), F e d e r a l Rules of Civil Procedure. Furthermore, the questions of fact common to proposed c la ss members do not predominate over such questions affecting projected individual m e m b e rs . Rule 23(b)(3), Federal Rules of Civil Procedure; see also England, 516 F.Supp. 1 4 4 (denying pro se plaintiffs' request to certify action as a class action finding that "any d e c la ra to ry relief granted ... would likely inure to the benefit of other similarly-situated in d iv id u a ls " even absent grant of request for class certification). Thus, the plaintiff's motion to certify this case as a class action is due to be denied. C O N C L U SIO N A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the p la in tif f 's motion to certify case as a class action be DENIED.

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It is further ORDERED that on or before April 13, 2009 the parties may file objections to this R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the M a g is 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 a 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 M a g is 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 k in g on appeal factual findings in the Recommendation accepted or adopted by the D i s t r i c t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in w r 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, en b a n c ), 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. D o n e this 27th day of March, 2009.

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

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