(PC) Wilson v. Sherman et al

Filing 14

FINDINGS and RECOMMENDATIONS to Deny Plaintiff's 10 Motion for Certification of Class signed by Magistrate Judge Sheila K. Oberto on 01/18/2023. Referred to Judge Thurston; Objections to F&R due within Fourteen-Days. (Flores, E)

Case 1:22-cv-00874-JLT-SKO Document 14 Filed 01/19/23 Page 1 of 3

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID W. WILSON,

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Plaintiff,
v.
STUART SHERMAN, et al.,

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Defendants.

Case No.: 1:22-cv-00874 JLT SKO (PC)
FINDINGS AND RECOMMENDATIONS TO
DENY PLAINTIFF’S MOTION FOR
CERTIFICATION OF CLASS
(Doc. 10)
14-DAY OBJECTION PERIOD

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Plaintiff David W. Wilson is appearing pro se and in forma pauperis in this civil rights
action brought pursuant to 42 U.S.C. § 1983.

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I.

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On August 25, 2022, Plaintiff filed a motion for certification of class, citing Fed. R. Civ.

PLAINTIFF’S MOTION FOR CERTIFICATION OF CLASS

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P. 23(a). (Doc. 10.) Plaintiff contends his complaint “against B-Facility, California Substance

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Abuse Treatment Facility, exceeds 40 individuals … and more will be asked to Sign.” (Doc. 10 at

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1.) The complaint concerns “on-going imminent danger of inadequate” cooling, ventilation and

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circulation, and the presence of black mold and black dust, at the prison facility. (Id. at 1-2.)

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Plaintiff contends because “CDCR denys ‘question of law or fact common to the Class members

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and plaintiff,” denies the “’Typicality’ requirements grievance ‘Group Class,’” certification is

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appropriate. (Id. at 2.) Plaintiff attaches as exhibits a copy of an “Inmate/Parolee Group Appeal,”

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CDCR 602-G bearing the signatures of dozens of inmates housed in the B-Facility (id. at 4-7) and

Case 1:22-cv-00874-JLT-SKO Document 14 Filed 01/19/23 Page 2 of 3

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related grievance documents (id. at 8-11) in support of his motion.

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II.

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A party requesting class certification must demonstrate that “(1) the class is so numerous

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that joinder of all members is impracticable; (2) there are questions of law or fact common to the

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class; (3) the claims or defenses of the representative parties are typical of the claims or defenses

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of the class; and (4) the representative parties will fairly and adequately protect the interests of the

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class.” Fed. R. Civ. P. 23(a).
Plaintiff is not an attorney and is proceeding without counsel.1 As a prisoner proceeding

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DISCUSSION

pro se, Plaintiff is unable to satisfy the above prerequisites. Regarding the fourth prerequisite,

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“[i]t is well established that pro se prisoner plaintiffs are unable to fairly represent and adequately

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protect the interests of [a] class,” as required by Fed. R. Civ. P. 23(a)(4). Pickett v. Brown, No. C-

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11-0445-TEH, 2011 WL 3954553, at *1 (N.D. Cal. 2011) (citations omitted); see also Smith v.

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Schwarzenegger, 393 Fed. Appx. 518, 519 (9th Cir. 2010) (a layperson cannot ordinarily

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represent the interests of a class) (citing McShane v. United States, 366 F.2d 286, 288 (9th Cir.

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1966)); Gann v. Valley State Prison, No. 1:19-cv-01797-GSA, 2020 WL 70077, at *2 (E.D. Cal.

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2020) (citations omitted). “A litigant appearing in propria persona has no authority to represent

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anyone other than himself.” Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962) (citation

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omitted). It “is plain error to permit [an] imprisoned litigant who is unassisted by counsel to

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represent his fellow inmates in a class action.” Oxendine v. Williams, 509 F.2d 1405, 1407 (4th

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Cir. 1975). Accordingly, even assuming, arguendo, that Plaintiff met the first three prerequisites

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for class certification—numerosity, commonality and typicality—Plaintiff cannot meet all

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prerequisites because he cannot fairly and adequately protect the interests of the class.

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III.

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For the reasons stated above, IT IS HEREBY RECOMMENDED Plaintiff’s motion for

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CONCLUSION AND RECOMMENDATIONS

class certification (Doc. 10) be DENIED.

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These Findings and Recommendations will be submitted to the district judge assigned to

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Plaintiff’s motion for the appointment of counsel was denied by the undersigned in a separate order.

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Case 1:22-cv-00874-JLT-SKO Document 14 Filed 01/19/23 Page 3 of 3

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this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these

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Findings and Recommendations, a party may file written objections with the Court. The

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document should be captioned, “Objections to Magistrate Judge’s Findings and

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Recommendations.” Failure to file objections within the specified time may result in waiver of

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rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Sheila K. Oberto

January 18, 2023

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UNITED STATES MAGISTRATE JUDGE

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