ABDUR-RAHEEM v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 28

OPINION filed. Signed by Judge Michael A. Shipp on 12/16/2015. (kas, )

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SHAMSIDDIN A. ABDUR-RAHEEM,
Civil Action No. 15-1743 (MAS)
Plaintiff,

v.

OPINION

NEW JERSEY DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

SHIPP, District Judge:
Prose Plaintiff Shamsiddin A. Abdur-Raheem, confined at New Jersey State Prison in
Trenton, New Jersey, filed the instant Complaint pursuant to 28 U.S.C. § 1983, alleging various
violations of his constitutional rights.

Presently before the Court is Plaintiffs Motion for

Reconsideration ("Motion"), (ECF No. 9), challenging the Court's April 30, 2015 denial of
Plaintiffs request for class certification, (ECF Nos. 5 & 6). For reasons stated below, the Court
denies the Motion.
I.

STANDARD OF REVIEW

A motion for reconsideration of a final judgment is governed in this District by Local Civil
Rule 7.l(i). Treusch v. Center Square Supermarket, LLC, No. 11-4874, 2013 WL 1405031, at *3
(D.N.J. Apr. 5, 2013). Rule 7.l(i) requires the moving party to set forth the factual matters or
controlling legal authorities it believes the Court overlooked when rendering its initial decision.
L. Civ. R. 7.l(i). To prevail on a motion for reconsideration, the movant must show: (1) an

intervening change in the controlling law; (2) the availability of new evidence that was not

available when the court ... [rendered the judgment in question]; or (3) the need to correct a clear
error of law or fact or to prevent manifest injustice. U.S. ex rel. Schumann v. Astrazeneca Pharm.
L.P., 769 F.3d 837, 848-49 (3d Cir. 2014); see also Buzz Bee Toys, Inc. v. Swimways Corp., 20 F.

Supp. 3d 483, 515 (D.N.J. 2014). To prevail under the third prong, the movant must show that
"dispositive factual matters or controlling decisions of law were brought to the court's attention
but not considered." Mitchell v. Twp. of Willingboro Municipality Gov't, 913 F. Supp. 2d 62, 7778 (D.N.J. 2012) (quotation and citation omitted). The standard of review involved in a motion
for reconsideration is high and relief is to be granted sparingly. Id. at 78.
II.

DISCUSSION

Plaintiff does not point to an intervening change in the controlling law since the Court's
denial of class certification, nor does Petitioner rely on any new evidence that was not available
when the Court rendered the prior judgment. As such, the Court analyzes Petitioner's arguments
solely under the third prong described above, the need to correct a clear error of law or fact or to
prevent manifest injustice.
Rule 23 of the Federal Rules of Civil Procedure requires that in order for a plaintiff to
obtain class action certification, four elements must be satisfied: "(1) the class is so numerous that
joinder of all members is impracticable; (2) there are questions oflaw 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 interest of the class."
Fed. R. Civ. P. 23(a).
In the prior opinion, a key rationale for the Court's denial of class certification was that:
[A] prisoner proceedingpro se is inadequate to represent the interests of his fellow
inmates in a class action. See Ali v. Jersey City Parking Auth., No. 13-2678, 2014
WL 1494578, at *8 (D.N.J. Apr. 16, 2014); Blackburn v. Aventis Pharm. Inc., No.
06-4951, 2006 WL 3544980, at *3 n.1 (D.N.J. Dec. 8, 2006); Cahn v. U.S., 269 F.
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Supp. 2d 537, 547 (D.N.J. 2003); Caputo v. Fauver, 800 F. Supp. 168, 170 (D.N.J.
1992) ("Every court that has considered the issue has held that a prisoner
proceeding pro se is inadequate to represent the interests of his fellow inmates in a
class action") (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975);
Avery v. Powell, 695 F. Supp. 632, 643 (D.N.H. 1988); Ethnic Awareness Org. v.
Gagnon, 568 F. Supp. 1186, 1187 (E.D. Wis. 1983)).
(Op. 5, Apr. 30, 2015, ECF No. 5.) The Court reaffirms that reasoning here. See Lewis v. City of

Trenton Police Dep 't, 175 F. App'x 552, 554 (3d Cir. 2006) ("Lewis, who is proceeding prose,
may not represent a putative class of prisoners."); Alexander v. NJ. State Parole Bd., 160 F. App'x
249, 250 n.1 (3d Cir. 2005) ("[A] prisoner proceeding prose may not seek relief on behalf of his
fellow inmates.")
Plaintiff cites to Federal Rule of Civil Procedure 23(g) 1 for the proposition that "[t]his last
point would be irrelevant in the event class certification is granted, because, the Court would then
be compelled to sua sponte appoint class counsel." (Pl.'s Mot. Br. 9.) However, "Rule 23(g) is
made applicable to the appointment of counsel following . .. class certifications." Sheinberg v.

Sorensen, 606 F.3d 130, 133 (3d Cir. 2010) (emphasis added). Because the Court denied class
certification, Rule 23(g) is not even applicable to the present matter. Nevertheless, the essence of
Plaintiffs argument is not lost on the Court-Plaintiff may request the appointment of a pro bona
counsel, who may subsequently agree to assist Plaintiff with his class action claims. See Arrango

v. Ward, 103 F.R.D. 638, 639 (S.D.N.Y. 1984) (court-appointed counsel, after appointment, sought
to amend the complaint to assert class action claims and seek class certification); see also Hagan

v. Rogers, 570 F.3d 146, 159 (3d Cir. 2009) (finding that the district court abused its discretion in
denying class certification when plaintiffs had a pending motion for the appointment of counsel).

Rule 23(g) states, "[u ]nless a statute provides otherwise, a court that certifies a class must
appoint class counsel." Fed. R. Civ. P. 23(g).
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Here, however, Plaintiff has not sought the appointment of counsel. "The inquiry that a
court should make regarding the adequacy of representation requisite of Rule 23(a)(4) is to
determine that the putative named plaintiff has the ability and the incentive to represent the claims
of the class vigorously, that he or she has obtained adequate counsel, and that there is no conflict
between the individual's claims and those asserted on behalf of the class." Hassine v. Jeffes, 846
F.2d 169, 179 (3d Cir. 1988) (emphasis added); see Oxendine, 509 F.2d at 1407 ("Ability to protect
the interests of the class depends in part on the quality of counsel[.]"); Heard v. Caruso, 351 F.
App'x 1, 12 (6th Cir. 2009) (approving Oxendine); Douglas v. Clark, No. 92-1533, 1993 WL
137718, at *1 (7th Cir. Apr. 30, 1993) ("Clearly the ability to protect the interests ofa class depends
in part on the quality of counsel."). Because Plaintiff has yet to obtain counsel or seek to have one
appointed, the Court's inquiry is still limited to whether Plaintiff, a prose prisoner litigant, can,
on his own, fairly and adequately protect the interest of the class. The answer to that inquiry, of
course, has been answered above and requires no further analysis. See Powers v. Clay, No. 110051, 2012 WL 642258, at *5 (S.D. Tex. Feb. 27, 2012) ("[Plaintiffs] posit that they would get
appointed counsel if a class were certified. This approach puts the cart before the horse. Plaintiffs
were not appointed counsel and have not been able to persuade any attorneys to represent them

pro bono."). Having found that Plaintiff fails to satisfy an essential element of class certification
under Rule 23, the Court need not address Plaintiff's other arguments for class certification on
reconsideration. Accordingly, the Court denies the Motion.

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III.

CONCLUSION

For the reasons set forth above, the Motion is DENIED.

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