Elliott v. Sims et al

Filing 20

REPORT AND RECOMMENDATION Denying re 5 MOTION for Designation as a Class Action Civil Suit filed by Jamie Elliott. Objections to R&R due by 3/6/2009. Signed by Magistrate Judge Mark R. Abel on 2/17/09. (rew )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Jamie Elliott, Plaintiff v. G a r y Sims, Religious Services Administrator and Michael Sheets, Warden, Ross Correctional Institution, Defendants : : : : : : : Civil Action 2:08-cv-01144 Judge Marbley Magistrate Judge Abel

Report and Recommendation
It is RECOMMENDED that plaintiff Jamie Elliott 's December 11, 2008 motion for designation as a class action (doc. 5) be DENIED. Rule 23(a)(4), Fed. R. Civ. P. requires the plaintiff to demonstrate that he "will fairly and adequately protect the interests of the class." The ability of both the plaintiff and his attorney to adequately represent the class is the most important discretionary decision a court must make in its ruling on the motion to certify. See, Harriss v. Pan American Airways, 74 F.R.D. 24, 42 (N.D. Calif. 1974). The experience and ability of counsel must be carefully considered. See, Cross v. National Trust Life Insurance, 553 F.2d 1026, 1031 (6th Cir. 1977). Non-attorney, pro se litigants cannot fairly and adequately represent and protect the interests of class members. McGoldrick v. Werholtz, 185 Fed. Appx. 741, 744, 2006 WL 1704463, **2 (10th Cir. June 22, 2006); Fymbo v. State Farm Fire and Casualty Co., 213 F.3d 1320, 1321 (10th Cir. 2000); Phillips v. Tobin, 548 F.2d 408, 413-15 (2d Cir. 1976); Oxendine

v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). Consequently, claims brought by prisoners who are not represented by counsel cannot be maintained as class actions. Martin v. Middendorf, 420 F. Supp. 779, 780-81 (D. D.C. 1976); Carlisle v. Sierlaff, 62 F.R.D. 441, 442 (E.D. Ill. 1974); Jeffrey v. Malcolm, 353 F. Supp. 395, 397 (S.D. N.Y. 1973). If any party objects to this Report and Recommendation, that party may, within ten (10) days, file and serve on all parties a motion for reconsideration by the Court, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. See 28 U.S.C. §636(b)(1)(B); Fed. R. Civ. P. 72(b). The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

s/Mark R. Abel United States Magistrate Judge

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