Archer et al v. Fox et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 10 in full; denying 7 Motion to Certify Class. Signed by Judge Brian Morris on 11/15/2017. Mailed to Plantiffs. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
FIL " ~)
District Of M,
MAURICE R. ARCHER, JOHN W.
CHAMBERS, CHARLES CLARY,
KEITH E. DOYLE, and BRIAN D.
ORDER ADOPTING MAGISTRATE
JUDGE'S FINDINGS AND
TIMOTHY FOX, ATTORNEY
GENERAL, STATE OF MONTANA;
HON. MIKE MCGRATH, CHIEF
JUSTICE, THE SUPREME COURT,
STATE OF MONTANA, et. aI.,
Plaintiffs Maurice Archer ("Archer"), John Chambers, Charles Clary, Keith
Doyle, and Brian Smith (collectively "Plaintiffs") filed motions to proceed in
former pauperis (Docs. 1-5), a motion for class certification (Doc. 7), and a motion
for appointment of counsel (Doc. 9). United States Magistrate Judge John Johnston
issued an Order and Findings and Recommendations in this matter on October 18,
2017. (Doc. 10.) Judge Johnston ordered that Plaintiffs' claims be severed, and that
the motion for appointment of counsel be denied. (Doc. 10 at 10-11.) Judge
Johnston further recommended that the Court deny Plaintiffs' motion for class
certification. (Doc. 10 at 11.) Judge Johnston separately granted Plaintiffs' motions
to proceed in forma pauperis on October 23,2017. (See Doc. 12.)
Archer filed an objection on November 6,2017. (Doc. 14.) Archer objected
to Judge Johnston's order of severance and resultant "recharacterization" of the
complaint from a class action to five individual cases. (Doc. 14 at 10.) Archer's
objection further contained substantial reargument of the Complaint's arguments
regarding the Fourteenth Amendment. (Doc. 14 at 8-9.)
The Court reviews de novo findings and recommendations to which
objections are made. 28 U.S.C. § 636(b)(1)(C). Portions offmdings and
recommendations to which no party specifically objects are reviewed for clear
error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309,
1313 (9th Cir. 1981). Where a party's objections, however, constitute perfunctory
responses argued in an attempt to engage the district court in a relitigation of the
same arguments set forth in the original response, the Court will review for clear
error the applicable portions of the findings and recommendations. Rosling v.
Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014) (internal citations
Archer's objections generally refer to both Judge Johnston's severance order
and his recommendation to deny class action certification. (Doc. 14 at 4.) The
Court acknowledges that the issues are closely related, and notes Archer's pro se
status. The Court must "liberally construe" pro se filings. Erickson v. Pardus, 551
U.S. 89, 94 (2007). Therefore, the Court construes Archer's objections liberally as
objections to Judge Johnston's class action recommendation, and reviews de novo
the recommendation to deny class certification.
To the extent that Archer objects to Judge Johnston's order to sever and
deny appointment of counsel, this Court reviews those portions for clear error.
Grimes v. City and County o/San Francisco, 951 F.2d 236,241 (9th Cir. 1991).
This Court must defer to the magistrate's order unless it is clearly erroneous or
contrary to law. Id.
Judge Johnston recommends that the Court deny class certification because
pro se plaintiffs are generally prohibited from pursuing claims on behalf of others
in a representative capacity. (Doc. 10 at 2.) In response, Archer highlights the
rationale underlying the class action: efficient, simultaneous litigation of similar
claims. (Doc. 14 at 3-5.)
Judge Johnston's recommendation to deny class certification does not
concern the benefits of proceeding as a class action. Judge Johnston based his
recommendation instead solely on the standing prohibition on pro se plaintiffs
acting in a representative capacity. (Doc. 10 at 2.) Such prohibition has been
recognized by the Ninth Circuit. Simon v. Hartford Life and Accident Ins. Co., 546
F3d 661, 664 (9th Cir. 2008). The perceived benefits of proceeding as a class do
not defeat the rule.
The Court has reviewed the remainder of Judge Johnston's Order and
Findings and Recommendations for clear error. The Court finds no error, and
adopts the Findings and Recommendations in full.
Accordingly, IT IS ORDERED that Magistrate Judge Johnston's Findings
and Recommendations (Doc. 10) is ADOPTED IN FULL. Plaintiffs' motion for
class certification (Doc. 7) is DENIED.
DATED this 14th day of November, 2017.
United States District Court Judge
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