Bailey et al v. Suey et al

Filing 40

ORDER Denying 25 Plaintiff's Motion for Class Certification. Signed by Judge James C. Mahan on 06/18/2013. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ANTHONY BAILEY #00683227, et al.,

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2:12-CV-1954 JCM (CWH)

Plaintiff(s),

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v.

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CLARK COUNTY, NEVADA, et al.,

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Defendant(s).

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ORDER

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Presently before the court is pro se prisoner plaintiff Anthony Bailey’s motion for class

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certification. (Doc. #25). Defendants filed a response in opposition (doc. #28), and the plaintiff filed

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a reply (doc. #29).

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I.

Background

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Anthony Bailey, John Scott, Norman Belcher, and Gabriel Yates are pro se prisoner

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plaintiffs. They filed this lawsuit on behalf of other inmates and former inmates of the Clark County

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Detention Center (“CCDC”), and plaintiff Bailey is attempting to certify a class on behalf of the

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other prisoners. Plaintiffs allege that they were deprived of fresh air and clean ventilation for lengthy

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periods of time at CCDC.

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II.

Legal Standard

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A party seeking class certification bears the burden of demonstrating that all four

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prerequisites of Rule 23(a) and at least one criterion of Rule 23(b) are met. Conn. Ret. Plans & Trust

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James C. Mahan
U.S. District Judge

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Funds v. Amgen. Inc., 660 F.3d 1170, 1175 (9th Cir. 2011). The four prerequisites to class

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certification under Rule 23(a) are:

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(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.

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Id.

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A class action “may [ ] be certified [only] if the trial court is satisfied, after a rigorous
analysis, that the prerequisites of Rule 23(a) have been satisfied.” Gen. Tel. Co. Sw. v. Falcon,

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102 S.Ct. 2364, 2372 (1982). “[A]ctual, not presumed, conformance with Rule 23(a) remains . . .

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indispensable.” Id. at 2372. “Rule 23 does not set forth a mere pleading standard. A party seeking

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class certification must affirmatively demonstrate his compliance with the Rule—that is, he must

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be prepared to prove that there are in fact sufficiently numerous parties, common questions of

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law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).

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The decision to grant or deny a motion for class certification is committed to the trial

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court’s broad discretion. Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010).

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III.

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Discussion
Plaintiff argues that their class is adequately defined, meets the requirements of Rule

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23(a) and (b). (See Doc. #25). Defendants contend those assertions on all points. (See Doc. #28).

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The court will address adequate class definition and the requirements of Rule 23(a) because those

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issues prove dispositive without the need to address Rule 23(b).

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A.

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The class itself must be properly defined. Rader v. Teva, 276 F.R.D. 524, 529 (D.Nev.

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2011). The definition must be “precise, objective, and presently ascertainable. Id. (citing In re

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Wal-Mart Wage & Hour Employment Practices Litig., No. 2:06-CV-00225, 2008 WL 3179315,

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at *20 (D. Nev. June 20, 2008)). “Generally, it is inappropriate to define a class in such a way

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that class membership cannot be identified until the merits are resolved.” Benito v. Indymac

Adequately Defined Class

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James C. Mahan
U.S. District Judge

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Mortgage Servs., No. 2:09–CV–001218, 2010 WL 2089297 at *2 (D. Nev. May 21, 2010).

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In this case, the class is not adequately defined because the court would need to make

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individual determination for each proposed class member regarding whether he or she was

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denied access to fresh air, the duration of the denial, and the reason for the denial (i.e., was the

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reason for the denial specific to the prisoner or part of systemic deliberate indifference endemic

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in the entire facility.

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The plaintiff simply defines the class as the thousands of inmates that the Clark County

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Detention Center houses daily. (Doc. # 25). The plaintiff provides no temporal or physical

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limitations on the group of inmates they contend makes up the class. Without such specificity,

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the class lacks a definable scope and is too broad to be an adequately defined class. Because the

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class asserted by the plaintiff is not precise, objective, or presently ascertainable, the class is not

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properly defined.

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B.

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Fed. R. Civ. P. 23(a)
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Numerosity

Numerosity, the first prerequisite of class certification, requires that the class be “so

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numerous that joinder of all members is impractical.” Fed. R. Civ. P. 23(a)(1). While the

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plaintiff does not have to precisely identify all members that are presently ascertainable, plaintiff

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must at least establish that there exists a legally definable class that can be ascertained by

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reasonable efforts. See Clay v. American Tobacco Co., 188 F.R.D. 483, 490 (S.D. Ill. 1999);

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Earnest v. General Motors Corp., 923 F. Supp. 1469, 1473 & n.4 (N.D. Ala. 1996).

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Here, the plaintiff simply identifies the thousands of inmates the Clark County Detention

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Center maintains daily and the hundreds that come and go each day as the putative class. (Doc. #

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25). Plaintiff makes no attempt to demonstrate that these inmates were subjected to the alleged

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denial of fresh air and proper ventilation. Plaintiff has not satisfied Rule 23(a)(1) because

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plaintiff has made no reasonable estimation of the number of members of the class–he has stated

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only everyone at CCDC.

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...

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James C. Mahan
U.S. District Judge

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ii.

Commonality

Commonality, the second prerequisite of class certification, requires that “there are

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questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Specifically, the

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Supreme Court noted that what matters to class certification is not the raising of common

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questions, but “the capacity of a classwide proceeding to generate common answers apt to drive

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the resolution of the litigation.” Wal-Mart Stores, Inc., 131 S. Ct., 2551. Further,

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“dissimilarities with the proposed class are what have the potential to impede the generation of

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common answers.” Id.

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Here, plaintiff has not established any common questions or how the common questions

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would be resolved by a common answer. For example, plaintiff has not established that all

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inmates in a certain cell block are deprived of clean and fresh air. Plaintiff has not alleged that

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he or a putative class is deprived of fresh air for long periods of time or that, if putative class

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members are deprived, it is resolvable by any single answer. If any inmates are deprived of fresh

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air it could be for a number of reasons specific to that particular inmate and have no potential of

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resolution by a class wide answer. The plaintiffs’ complaint, motion for class certification, and

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reply do not adequately establish common factual and legal ground with the other inmates the

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plaintiffs say would form the proposed class. (See Doc. # 1, 25, and 29).

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iii.

Typicality

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Typicality, the third prerequisite of class certification, requires that “the claims or

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defenses of the representative parties [be] typical of the claims or defenses of the class.” Fed. R.

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Civ. P. 23(a)(3). “The purpose of the typicality requirement is to assure that the interests of the

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named representative aligns with the interests of the class.” Hanon v. Dataproducts Corp., 976

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F.2d 497, 508 (9th Cir. 1992) (citation omitted). The test of typicality is whether other members

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have the same or similar injury, whether the action is based on conduct which is not unique to the

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named plaintiffs, and whether other class members have been injured by the same course of

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conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992).

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James C. Mahan
U.S. District Judge

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Plaintiff as a potential class representative cannot meet the undemanding typicality

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standard. His claims (and any potential defenses) would be specific to him. The claims he

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asserts on behalf of putative class (and any potential defenses) would be dominated by

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individualized evidence regarding whether the putative class members were subjected to the

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same treatment as plaintiff for the same reasons (such as deliberate defenses). Additionally, the

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individual specific inquiry for each putative class member would require a PLRA inquiry. The

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only claim this plaintiff has in common with other putative members is that they all, at one time,

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were at CCDC. Such a minimal typical claim does not meet the Rule 23(a)(3) standard.

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iv.

Adequate Representation

An adequate representative is one who will “fairly and adequately protect the interests of

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the class.” Fed.R.Civ.P. 23(a)(4). Due process requires that absent class members have an

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adequate representative. See Hansberry v. Lee, 61 S.Ct. 115, 120 (1940). A representative is

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adequate where: (1) there is no conflict of interest between the representative and her counsel and

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absent class members; and (2) the representative and her counsel will “pursue the action

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vigorously on behalf of the class.” Hanlon, 150 F.3d at 120 (internal citations and quotations

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omitted).

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Pro se prisoner plaintiffs may not bring class actions because they are not adequate class

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representatives able to fairly represent and adequately protect the interests of the class. See

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Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.1975); see also Russell v. United States, 308

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F.2d 78, 79 (9th Cir.1962) (holding “a litigant appearing in propria persona has no authority to

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represent anyone other than himself”).

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This prisoner has no authority to represent anyone other than himself. He is not an

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adequate class representative nor is he an attorney able to litigate this action on behalf of other

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inmates. In fact, the Ninth Circuit has noted that this particular prisoner is a vexations litigant

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and has stated that Bailey’s “practice of burdening this court with meritless litigation justifies

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careful oversight of [his] future litigation in this court.” In re Bailey, no. 12-80059, Order (9th

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Cir. Apr. 23, 2012).

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James C. Mahan
U.S. District Judge

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IV.

Conclusion

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The motion for class certification is denied.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiffs’ motion for

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class certification (doc. #25) be, and the same hereby is, DENIED.
DATED June 18, 2013.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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