Brown v. Dosal et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS [Doc. No. 30]; Defendants' Motion to Dismiss [Doc. No. 17] is GRANTED; Class Certification Motions of Deborah Francis and Robert E. Brown, Jr. [Doc. No. 30 Exs. B, C] are DENIED; and the Complaint is DISMISSED without prejudice. (Written Opinion)Signed by Judge Susan Richard Nelson on 05/23/2011. (MJC)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 10-CV-4315 (SRN/AJB)
MEMORANDUM AND ORDER
Sue Dosal, Mark Thompson, and
Cynthia Brown, P.O. Box 23496, Savannah, Georgia 31403, pro se.
John S. Garry, Minnesota Attorney General’s Office, 445 Minnesota Street, Suite 1100, St. Paul,
Minnesota 55101, for Defendants.
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on the Order and Report and Recommendation (“R&R”)
of Chief Magistrate Judge Arthur J. Boylan dated March 24, 2011 [Doc. No. 30]. In the R&R,
Chief Magistrate Judge Boylan recommended that this Court grant Defendants’ Motion to
Dismiss and deny two Class Certification Motions. Plaintiff timely filed objections to the R&R
[Doc. No. 31].
According to statute, the Court must conduct a de novo review of any portion of the
Magistrate Judge’s opinion to which specific objections are made. 28 U.S.C. § 636(b)(1)(C);
Fed. R. Civ. P. 72(b); D. Minn. L.R. 72.2(b). Based on that de novo review, the Court adopts the
R&R, grants the Motion to Dismiss, and denies the Class Certification Motions.
On October 21, 2010, Plaintiff Cynthia Brown filed a Complaint for Violation of Civil
Rights under 42 U.S.C. § 1983 [Doc. No. 1], alleging that the jury selection process in Hennepin
County, Minnesota, violates the Fourteenth Amendment’s Equal Protection clause.1 Plaintiff, an
African-American, contends that, “[b]ecause of the DESIGN of the Hennepin County grand jury
selection system[,] African-Americans living within the Fourth Judicial District [of Minnesota]
are being denied immunity from discrimination against our race in the selection of grand jurors.”
(Compl. ¶ 77.) Notably, this discrimination has not affected Plaintiff personally; she has neither
served on a jury in Hennepin County nor is she eligible to do so following a felony conviction in
December 2009. (Id. ¶ 82-84.) Rather, Plaintiff alleges that this systemic discrimination tainted
the all-white grand jury that indicted her son, Michael Francis, in July 2004. (Id. ¶ 5.) Mr.
Francis was subsequently convicted at trial and sentenced to life in prison. Francis v. State, 729
N.W.2d 584, 588-89 (Minn. 2007).
After the instant Motion was filed, Plaintiff filed three more documents with the Court:
(1) an Amended Complaint; (2) a Notice of Motion and Motion for Class Certification with
Deborah Francis listed as the plaintiff; and (3) a Notice of Motion and Motion for Class
Certification with Robert E. Brown, Jr., listed as the plaintiff. (R&R Exs. A-C.) Chief
Although the caption of Plaintiff’s Complaint refers only to 42 U.S.C. § 1983, Plaintiff
also purports to assert claims under 42 U.S.C. § 1981 and 42 U.S.C. § 2000h-2. (Compl. ¶ 1.)
Neither of these claims are proper. Plaintiff’s claim under 42 U.S.C. § 1981 must be dismissed
because Plaintiff fails to allege any facts concerning discrimination in “mak[ing] and enforc[ing]
contracts.” 42 U.S.C. § 1981. Plaintiff’s 42 U.S.C. § 2000h-2 claim must also be dismissed
because that provision allows for intervention by the U.S. Attorney General—a request that
Plaintiff cannot make.
Magistrate Judge Boylan denied Plaintiff’s attempt to amend her Complaint, and recommended
denial of both Class Certification Motions. Plaintiff’s objections to the R&R can be divided into
two categories: (1) objections to the recommendation to deny the Class Certification Motions;
and (2) objections to the recommendation to grant Defendants’ Motion to Dismiss. The Court
will address these objections in turn.
Class Certification Objections
Chief Magistrate Judge Boylan recommended denial of Robert E. Brown, Jr.’s and
Deborah Francis’s Class Certification Motions because they are not parties to this action and
they have made no showing to satisfy any of the factors delineated in Federal Rule of Civil
Procedure 23(a). (R&R at 10 [Doc. No. 30].) Plaintiff counters that both Brown and Francis
have filed their own Complaints and contained therein lies the rationale for the purported class
certification. (Obj. ¶ 1 [Doc. No. 31].) Further, Plaintiff argues that “[i]ndividual suits of . . .
72,516 African-Americans would be impracticable.” (Id. ¶ 3.)
First, the fact that Brown and Francis have apparently initiated their own actions renders
their Motions moot. Indeed, the whole point of a class action is to obviate the need for multiple
actions. Second, as Chief Magistrate Judge Boylan noted, Plaintiff, Brown, and Francis do not
adequately address the threshold requirements listed in Rule 23(a). In an attempt to cure this
deficiency, Plaintiff points the Court to conclusory statements proffered in Brown’s and
Francis’s Complaints as well as to 2004 census data that indicate a population of 72,516 AfricanAmericans in Hennepin County.
Plaintiff’s argument falls well short of the mark. A plaintiff seeking to certify a class
must initially establish the following: (1) the class is so numerous that joinder of all the 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). At best, Plaintiff has only begun a discussion on the numerosity, commonality,
and typicality elements; she has not engaged in any kind of robust analysis that would allow the
Court to find in her favor. Further, as Chief Magistrate Judge Boylan noted, Plaintiff has not put
forth any argument concerning her efficacy as a representative party. Because a class action
“may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites
of Rule 23(a) have been satisfied,” this Court must deny the Motions for Class Certification.
Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982)).
Motion to Dismiss Objections
Chief Magistrate Judge Boylan recommended the dismissal of Plaintiff’s claim based on
Plaintiff’s lack of standing, and therefore, the Court’s lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1). Plaintiff argues that claims of racial discrimination in
grand jury selections in Hennepin County—Minnesota’s Fourth Judicial District—have been
asserted in many cases to date and that a favorable judgment would prevent discrimination
against African-Americans in the future. (Obj. ¶¶ 2, 4.)
Regardless of whether Plaintiff’s accusations are true, this Court may only consider cases
that fall within its jurisdictional limits. “If the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). “Jurisdictional
issues, whether they involve questions of law or of fact, are for the court to decide.” Osborn v.
United States, 918 F.2d 724, 729 (8th Cir. 1990) (citation omitted).
“Federal court jurisdiction is ‘defined and limited by Article III of the Constitution and is
constitutionally restricted to cases and controversies.’” Tarsney v. O’Keefe, 225 F.3d 929, 934
(8th Cir. 2000) (quoting Flast v. Cohen, 392 U.S. 83, 94 (1968)). Included in the analysis of
whether a case or controversy exists is the “irreducible constitutional minimum of standing . . . .”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing consists of three elements:
(1) an injury-in-fact, that is, “an invasion of a legally protected interest which is . . . concrete and
particularized, and . . . actual or imminent, not conjectural or hypothetical;” (2) a causal
connection between the injury and the alleged conduct; and (3) redressability. Id. at 560-61
(citations omitted). The first element is critical here; indeed, “[i]f [Plaintiff] has not suffered an
injury, there is no standing and the court is without jurisdiction to consider the action.” Tarsney,
225 F.3d at 934 (citing Allen v. Wright, 468 U.S. 737, 750-66 (1984)).
Plaintiff cannot show that she has suffered an injury-in-fact. As noted above, Plaintiff
has never served on a jury and, because of her recent felony conviction, cannot serve on a jury
until her civil rights are restored. Minn. R. Gen. Prac. 808(b)(6); see also Powers v. Ohio, 499
U.S. 400, 407 (1991) (declaring that states “may prescribe relevant qualifications for their
jurors”). She therefore lacks the requisite “actual or imminent” harm for standing as a
prospective juror. Further, assuming Plaintiff were to advance a theory that her own felony
conviction was the result of a jury formed through discriminatory means, that claim would also
fail. Indeed, Plaintiff’s conviction was in Washington County—the Tenth Judicial District—and
is therefore inapposite to her claim that the jury selection process in Hennepin County—the
Fourth Judicial District—is discriminatory. (See R&R at 8 (citing Register of Actions, State v.
Brown, No. 82-CR-09-1763 (10th Jud. Dist., Dec. 30, 2009)).)
Plaintiff also cannot challenge Hennepin County’s jury selection process on behalf of her
son. “In the ordinary course, a litigant must assert his or her own legal rights and interests, and
cannot rest a claim to relief on the legal rights or interests of third parties.” Powers, 499 U.S. at
410 (citations omitted). A litigant may, however, assert the rights of a third party if the
following criteria are met: (1) “[t]he litigant must have suffered an ‘injury in fact;’” (2) “the
litigant must have a close relation to the third party;” and (3) “there must exist some hindrance to
the third party’s ability to protect his or her own interest.” Id. at 411.
Focusing merely on the third element for the sake of this inquiry, Plaintiff’s son has no
impediment to bringing his own action. Indeed, Mr. Francis brought his own challenge to the
Hennepin County jury selection process and was rebuffed. Francis v. Fabian, 669 F. Supp. 2d
970, 982-85 (D. Minn. 2009) (Frank, J.). Plaintiff cannot show that Mr. Francis does not have
the ability to protect his own interest, and thus she may not assert third-party standing.
The putative Class Certification Motions must be denied, and this case must be dismissed
for want of subject matter jurisdiction.
THEREFORE, IT IS HEREBY ORDERED THAT:
The Report and Recommendation [Doc. No. 30] is ADOPTED;
Defendants’ Motion to Dismiss [Doc. No. 17] is GRANTED;
Class Certification Motions of Deborah Francis and Robert E. Brown, Jr. [Doc.
No. 30 Exs. B, C] are DENIED; and
The Complaint is DISMISSED without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
May 23, 2011
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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