Ybanez v. Milyard et al

Filing 166

ORDER accepting 139 Recommendation of United States Magistrate Judge. Denying 119 Motion for Class Certification, by Judge Philip A. Brimmer on 3/4/10.(ebs, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer Civil Action No. 07-cv-01976-PAB-MJW NATHAN YBANEZ, Plaintiff, v. KEVIN MILYARD, et al., Defendants. _____________________________________________________________________ ORDER _____________________________________________________________________ This matter comes before the Court on the Recommendation of United States Magistrate Judge ("the Recommendation") [Docket No. 139], which recommends that the Court deny the motion for class certification of plaintiff Nathan Ybanez. [Docket No. 119]. Plaintiff filed timely objections [Docket No. 142] to the Recommendation. Defendants filed a response [07-cv-00229-WYD-MJW, Docket No. 146]1 to the objections. Plaintiff seeks to represent a class of prisoners who were subjected to a strip search at the Sterling Correctional Facility. The Court has conducted a de novo review of the motion, the parties' briefs, and the relevant case law and has construed the plaintiff's motion liberally in light of his status as a pro se plaintiff. See Haines v.

Mr. Ybanez's lawsuit, along with two others, was previously consolidated with Quade v. Milyard, 07-cv-00229-WYD-MJW. The defendants' response to plaintiff's objections was filed in Quade while the cases were consolidated. It was not redocketed in this case after the cases were de-consolidated and plaintiff Ybanez's case was reassigned to me on April 6, 2009 [Docket No. 148, 07-cv-00229-WYD-MJW].

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Kerner, 404 U.S. 519, 520-21 (1972). The Court agrees with the magistrate judge's conclusion that plaintiff is not an adequate representative of the putative class. See Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000) ("A litigant may bring his own claims to federal court without counsel, but not the claims of others. This is so because the competence of a layman is `clearly too limited to allow him to risk the rights of others.'") (citations omitted). This conclusion is unaffected by the appointment of counsel for a plaintiff in a separate action raising similar claims in this Court. The question here is whether Mr. Ybanez will "fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). Having found that he cannot, the Court need not reach the other three prerequisites to class certification. See Fed R. Civ. P. 23(a). Plaintiff also objects to the magistrate judge's recommendation that each party pay his or her own attorney fees and costs. Contrary to plaintiff's reading of this recommendation, the magistrate judge has not reached the question of plaintiff's potential entitlement to costs at the end of the proceedings in this case if he is the prevailing party. Rather, the magistrate judge simply made clear that each side will bear the cost of litigating the present motion. For the foregoing reasons, it is ORDERED that the Recommendation of United States Magistrate Judge [Docket No. 139] is ACCEPTED. It is further ORDERED that the motion for class certification [Docket No. 119] is DENIED.

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DATED March 4, 2010. BY THE COURT:

s/Philip A. Brimmer PHILIP A. BRIMMER United States District Judge

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