Trainor et al v. Gebke et al
ORDER ADOPTING Magistrate Judge Wilkerson's 45 REPORT AND RECOMMENDATIONS denying 35 plaintiff's Motion for Class Certification. Signed by Judge David R. Herndon on 3/9/2018. (ceh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
COREY TRAINOR, et al.,
LARRY GEBKE, et al.,
MEMORANDUM and ORDER
HERNDON, District Judge:
Pending before the Court is a Report and Recommendation (“the Report”)
issued by Magistrate Judge Donald G. Wilkerson on January 22, 2018 (doc. 45).
The Report recommends that the Court deny plaintiffs’ Motion for Class
Certification (doc. 35).
Here, only plaintiff Michael Turner (“Turner”) filed an
objection to the Report1 (doc. 46). Based on the pleadings and the applicable law,
the Court adopts the Report and denies the motion for class certification.
The Court's review of the Report is governed by 28 U.S.C. § 636(b)(1)(C),
which provides in part:
A judge of the court shall make a de novo determination of those
the report or
or recommendations to which objection is made. A judge of the court
may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. The judge may
also receive further evidence or recommit the matter to the
magistrate judge with instructions.
Turner also appears to have filed objections to Magistrate Judge Wilkerson’s January 19, 2018
Order (doc. 44) denying plaintiffs’ motion to issue an order allowing Turner and plaintiff Corey
Trainor (“Trainor”) to correspond with one another for legal purposes relating to the case (doc.
41). Turner’s current objections to the Report regarding plaintiffs’ motion for class certification is
not the appropriate avenue to take issue with the January 19th Order. More on this infra.
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Fed. R. Civ. P. 72(b) also directs that the Court must only make a de
novo determination of those portions of the report and recommendation to which
specific written objection has been made. Johnson v. Zema Sys. Corp., 170 F.3d
734, 739 (7th Cir. 1999).
If no objection or only a partial objection is made, the Court reviews those
unobjected portions for clear error. Id. In addition, failure to file objections with
questions.” Id. Under the clear error standard, the Court can only overturn a
Magistrate Judge's ruling if the Court is left with “the definite and firm conviction
that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co., Ltd., 126
F.3d 926, 943 (7th Cir. 1997).
Specifically, Magistrate Judge Wilkerson found that pursuant to the four
considerations contained in Federal Rule of Civil Procedure 23(a) regarding class
certification, plaintiffs’ motion failed on all grounds.
Magistrate Judge Wilkerson found that plaintiffs did not describe the class “with
any other detail other than to state the proposed class is ‘all offenders within the
custody of Centralia CC.’ which they allege includes 1,500 offenders.” Doc. 45, p.
5. Additionally, plaintiffs did not provide how many inmates had been wrongfully
denied any publications due to the alleged censorship policy of defendant Gebke.
Id. In finding no commonality or typicality, Magistrate Judge Wilkerson noted
that factual analysis of why each alleged publication was banned would differ
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between each publication; and plaintiffs did not provide allegations that the
materials they were denied “were similarly denied to other inmates.” Id. at 6. As
to typicality, Magistrate Judge Wilkerson found “no evidence before the court as to
how many of the alleged 1,500 inmates at Centralia requested and were denied
materials based on the race or ethnicity of the author or subjects of the materials”
making the Court unable to find that plaintiffs’ claims would be typical of those of
Finally, as to adequacy, Magistrate Judge Wilkerson held that
based on the evidence, it was not certain plaintiffs “would have any incentive to
vigorously advocate for those materials they were not themselves denied.” Id. at
7. And, the Seventh Circuit has held that it is not an abuse of discretion to deny a
motion for class certification as a pro se litigant is not adequate class
Plaintiff Turner filed objections to the Report.2
On February 9, 2018,
Turner filed a mere three page (including 1.5 pages objecting to the January 19,
2018 Order) objection/response to the magistrate’s recommendation of denying
plaintiffs’ motion for class certification (doc. 46).3 The Court will first look at
Turner’s erroneously placed response to the January 19, 2018 Order (doc. 44),
denying plaintiffs’ motion to issue an order allowing one another to correspond
for purposes relating to their case.
The Court notes that Turner did not object to the Report’s recitation of the facts of the history of
the case. Thus, the Court finds it unnecessary to recite them in this Memorandum and Order.
Turner’s objection/response does not contain a single case citation, rule of law, or statue in
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From the date the non-dispositive January 19th Order was entered,
plaintiffs had 14 days in which to file an appeal. SDIL Local Rule 73.1(a) Appeal
of Non-Dispositive Matters - 28 U.S.C. § 636(b)(1)(A) (“Any party may appeal a
Magistrate Judge’s order determining a motion or matter within 14 days after
issuance of a Magistrate Judge’s order[.]”) As Turner’s combined objections were
filed 21 days later, the response is untimely. Even if the Court were to consider
the objections timely, it does so under the “clear error” standard. Id. (“A District
Judge shall reconsider the matter and shall set aside any portion of the
Magistrate Judge’s order found to be clearly erroneous or contrary to the law.”);
see also Federal Rule of Civil Procedure 72(a) (“The district judge in the case
must consider timely objections and modify or set aside any part of the order that
is clearly erroneous or is contrary to law.) A finding is clearly erroneous when
“the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Anderson v. City of Bessemer,
470 U.S. 564, 573 (1985) (quoting United States v. United States Gypsum Co.,
333 U.S. 364, 395 (1948). Here, the undersigned is left with no firm conviction
that the magistrate has committed any mistake in law in his denial of plaintiffs’
motion for order to correspond with one another. Accordingly, the Court finds no
merit in plaintiff Turner’s first objection.
Turner’s second objection addresses the Report at issue regarding
plaintiffs’ motion for class certification. In his response, Turner appears to only
raise objection to Magistrate Judge Wilkerson’s finding concerning the numerosity
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inquiry of Federal Rule of Civil Procedure 23(a)(1).4 Specifically, Turner argues
that “plaintiffs’ complaint adequately alleges that they and ‘prisoners alike’ are
being violated by the unconstitutional policies of Defendant Gebke”, and that
plaintiffs are unable to provide “documents from other offenders’ denials of
similar publications as prisoners . . . cannot be in possession of other offenders
names and identification information.” Doc. 46, p. 3. Because of this, Tuner
seeks a stay allowing time for plaintiffs to obtain documentation on other
prisoner’s publication denials, the Court assumes to aid in proving that the
numerosity requirement has been met.
Federal Rule of Civil Procedure 23(a) requires a Court to consider certain
factors when determining whether or not to certify a class.
One of those
considerations is whether the “class is so numerous that joinder of all members is
impracticable.” Id. A plaintiff need not demonstrate the precise size of a potential
class, but any proposed class must be sufficiently defined so that it is identifiable
to the Court. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). The
Court has broad discretion in determining whether a proposed class satisfactorily
meets the numerosity requirement. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir.
Here, plaintiffs provide little in the way of helping the Court define the
proposed class of upwards of 1,500 prisoners at Centralia Correctional Center.
As such, the Court will only review de novo Magistrate Judge Wilkerson’s Conclusions of Law
relating to the numerosity consideration. See 28 U.S.C. § 636(b)(1)(C).
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In the only support of his objection, Turner directs the undersigned to certain
portions of the Complaint (doc. 1). Specifically, paragraph 36 stating:
Plaintiff and prisoners alike, publications that are denied by Defendant
Gebke did not depict, describe, or encourage activities which may lead
to the use of physical/sexual violence or group disturbances or
otherwise present a threat to the security, order or rehabilitative
objectives of the correctional system of the safety of any person.
And paragraph 40, stating:
At no time did the defendant ever produce for inspection to its offenders
at Centralia C.C. a memorandum alerting them or such banned
publications, and to this day has not produced a memorandum of
Despite these allegations, there is no evidence presented that allows the
Court to determine how many inmates have been denied publications. Plaintiffs
complain of censored publications for a variety of reasons including violence,
sexual conduct, and improper racial or cultural biases towards AfricanAmericans, yet provide no data as to how many inmates have suffered, let alone
how many have suffered each category of censorship. The Court also notes that
Turner’s request for a stay to attempt to gather documents proving similar
censorship methods only demonstrates that, at the very least, the motion for class
certification is premature as plaintiffs are unaware of how many other inmates, if
any, suffered from the same type of denial by defendant Gebke. “[A] class can be
certified without determination of its size, so long as it's reasonable to believe it
large enough to make joinder impracticable and thus justify a class action suit.”
Arnold Chapman & Paldo Sign & Display Co. v. Wagener Equities Inc., 747 F.3d
489, 492 (7th Cir. 2014). Here, after reviewing the record, the Court concludes,
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as Magistrate Judge Wilkerson concluded, that based on the evidence presented,
it is not reasonable to believe the numerosity requirement has been met. And if
the proposed class fails to meet any of the four class requirements of Federal Rule
of Civil Procedure 23, class certification is precluded.
Kress v. CCA of
Tennessee, LLC, 694 F.3d 890, 893 (7th Cir. 2012).
The Court finds that Magistrate Wilkerson’s January 22, 2018 Report
denying plaintiffs’ motion for class certification is well written and clearly sets out
the reasons for his recommendation. Accordingly, the Court ADOPTS the Report
in its entirety, including its Findings of Fact and Conclusions of Law (doc.45).
Thus, the Court DENIES the motion for class certification (doc. 35).
IT IS SO ORDERED.
United States District Court Judge
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