Sutton et al v. Arrowhead Correctional Center et al

Filing 31

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re denying 28 Declared MOTION for Class Action Certification - Due to Pending Motion for Counsel, by Magistrate Judge Michael J. Watanabe on 4/04/2018. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02191-RM-MJW
JOSHUA LAMONT SUTTON,
Plaintiff,
v.
LT. HYDENTHAL,
LT. RILEY,
MR. CELLA,
SGT. TAYLOR,
MRS. SANTOS, and
MRS. MILLER,
Defendants.
REPORT AND RECOMMENDATION ON
PLAINTIFF’S DECLARED MOTION FOR CLASS ACTION CERTIFICATION – DUE
TO PENDING MOTION FOR COUNSEL
(DOCKET NO. 28)

Entered by Magistrate Judge Michael J. Watanabe
This case is before the Court pursuant to an Order Referring Case entered by
Judge Raymond P. Moore on February 12, 2018. (Docket No. 19.) Now before the
Court is Plaintiff’s Declared Motion for Class Action Certification – Due to Pending
Motion for Counsel (Docket No. 28). Defendants have not filed a response. Judge
Moore referred the subject motion to the undersigned Magistrate Judge on February 26,
2018. (Docket No. 29.) The Court has carefully considered the motion. The Court has
taken judicial notice of the Court’s file and has considered the applicable Federal Rules
of Civil Procedure and case law. The Court now being fully informed makes the
following findings of fact, conclusions of law, and recommendation.

Judge Lewis T. Babcock succinctly summarized Plaintiff’s claims in his Order to
Dismiss in Part and to Assign Case, entered on February 9, 2018. (Docket No. 18.)
Plaintiff seeks to certify a class action regarding the allegedly unlawful conduct that
occurred while he was incarcerated at the Arrowhead Correctional Center (“ACC”).
Plaintiff’s Second Amended Complaint (Docket No. 16) asserts two claims for relief: (1)
the § 1983 claims asserted against Defendants Hydenthal, Riley, Taylor, Santos and
Miller, in their individual capacities, for violation of Plaintiff’s rights under the First
Amendment free exercise clause, the Fourteenth Amendment equal protection clause,
and for unconstitutional retaliation; and, (2) the §1983 claim s asserted against
Defendant Cella, in his individual capacity, for unconstitutional retaliation.
There are four prerequisites for class certification:
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class.
Fed. R. Civ. P. 23(a). The party seeking to certify a class bears the burden of proving
that all the requirements of Rule 23 are met. See Vallario v. Vandehey, 554 F.3d 1259,
1267 (10th Cir. 2009). The Court is required to engage in a “rigorous analysis” into
whether the requirements of Rule 23 are satisfied. Wal–Mart Stores, Inc. v. Dukes, 564
U.S. 338, 350–51 (2011).
Here, Plaintiff has not met his burden under Rule 23. Indeed, he f ailed to
establish the first prerequisite. In order to meet the numerosity requirement, Plaintiff

needed to only define the class adequately and then establish that the class is so
numerous that joinder of all members is impractical. See Neiberger v. Hawkins, 208
F.R.D. 301, 313 (D. Colo. 2002). W hile there is no set formula to determine if a class is
so numerous that it should be certified, Plaintiff was required to present “some evidence
of established, ascertainable numbers constituting the class in order to satisfy even the
most liberal interpretation of the numerosity requirement.” Rex v. Owens ex rel. State of
Okl., 585 F.2d 432, 436 (10th Cir. 1978). In neither his Second Am ended Complaint
(Docket No. 16) nor the subject motion does Plaintiff even allege, much less establish,
the number of inmates, Muslim or otherwise, that were affected by the allegedly
unconstitutional conduct. He therefore cannot demonstrate that the joinder of these
inmates is impracticable.
Because Plaintiff has not met the very first threshold requirement, the Court
declines to consider whether he has established the commonality, typicality, and
representational requirements.
Wherefore, it is hereby RECOMMENDED that Plaintiff’s Declared Motion for
Class Action Certification – Due to Pending Motion for Counsel, (Docket No. 28) be
DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file

and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions,
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412-13 (10th Cir. 1996).

BY THE COURT
Date: April 4, 2018
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge