Brown v. Warden Ross Correctional Institution, et al.

Filing 111

REPORT AND RECOMMENDATIONS re 85 MOTION to Certify Class and Appoint Counsel: The Magistrate Judge RECOMMENDS that the Court DENY Plaintiff's Motion. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/1/2011. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

YUSUF BROWN,
Plaintiff,
Civil Action 2:10-cv-822
JUDGE GREGORY L. FROST
Magistrate Judge E.A. Preston Deavers

v.

WARDEN ROSS CORRECTIONAL
INSTITUTION, et al.,
Defendants.

REPORT AND RECOMMENDATION
This is a civil rights action under 42 U.S.C. § 1983 in which Plaintiff, Yusuf Brown, an
African-American inmate in the custody of the Ross Correctional Institution (“RCI”) who is
proceeding without the assistance of counsel, alleges that Defendants’ unwritten policy of
assigning cellmates on the basis of race violates his right to equal protection under the
Fourteenth Amendment. This matter is before the Court for consideration of Plaintiff’s Motion
for Class Certification and Appointment of Class Counsel. (ECF No. 85.) For the reasons that
follow, the undersigned RECOMMENDS that the Court DENY Plaintiff’s Motion.
Federal Rule of Civil Procedure 23 governs the certification and maintenance of class
actions. Rule 23, in relevant part, provides:

(a)

Prerequisites. One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:
(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.

Fed. R. Civ. P. 23(a). Thus, a court may not certify a class action unless the named plaintiffs
satisfy all four of the prerequisites set forth in subdivision (a). The plaintiffs bear the burden of
establishing Rule 23(a)’s requirements. In re American Med. Sys, Inc., 75 F.3d 1069, 1079 (6th
Cir. 1996). Because a final judgment in a class action binds class members, this Court must
“conduct a ‘rigorous analysis’ into whether the prerequisites of Rule 23 are met before certifying
a class.” Id. at 1078–79, 1083 (quoting General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982)).
In this case, the undersigned finds it unnecessary to consider each of Rule 23(a)’s
requirements because Plaintiff is unable to satisfy the fourth prerequisite, that he will fairly and
adequately protect the interests of the class members. The United States Court of Appeals for
the Sixth Circuit has instructed that to establish adequacy of representation, “‘(1) the
representative must have common interests with unnamed members of the class; and (2) it must
appear that the representatives will vigorously prosecute the interests of the class through
qualified counsel.’” In re American Medical Sys., 75 F.3d at 1083 (emphasis added) (quoting
Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976)). Because Plaintiff is a nonattorney proceeding pro se, he cannot adequately represent a class. See Ziegler v. Michigan, 90
F. App’x 808, 810 (6th Cir. 2004) (“[N]on-attorneys proceeding pro se cannot adequately
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represent a class.”); Palasty v. Hawk, 15 F. App’x 197, 200 (6th Cir. 2001) (“[P]ro se prisoners
are not able to represent fairly the class.”). “This is because the competence of a layman is
clearly too limited to allow him to risk the rights of others.” Fymbo v. State Farm Fire & Cas.
Co., 213 F.3d 1320, 1321 (10th Cir. 2000). Consequently, the undersigned RECOMMENDS
that the Court conclude that Plaintiff may not maintain a class action on behalf of other
prisoners.
In an effort to avoid this result, Plaintiff requests appointment of counsel to represent the
putative class pursuant to Rule 23. A plaintiff pursuing a civil action does not have a
constitutional right to counsel. Lavado v. Keohane, 992 F.2d 601, 605–06 (6th Cir. 1993)
(citation omitted). Contrary to Plaintiff’s assertion, Rule 23 does not authorize the appointment
of counsel to represent an indigent plaintiff seeking to certify a class. Although Rule 23(g)(1)
requires a court certifying a class to appoint class counsel, a court typically selects the appointed
counsel from applicants seeking appointment. See Fed. R. Civ. P. 23(g)(2) 2003 advisory
committee’s note (“In a plaintiff class action the court usually would appoint as class counsel
only an attorney or attorneys who have sought appointment.”). Though the Court does have
statutory authority to appoint counsel in civil cases under 28 U.S.C. § 1915(e), the exercise of
this authority is limited to extraordinary situations. Lavado, 992 F.2d at 606. The undersigned
has evaluated whether such exceptional circumstances exist in this case, and determines that the
appointment of counsel is not warranted at this juncture. Cf. Carney v. Treadeau, No. 2:07-cv83, 2008 WL 485204, at *2 (W.D. Mich. Feb. 19, 2008) (“It would be putting the cart before the
horse for the court to certify a class based on contingent events such as survival of the case to
summary judgment and the location of an attorney both willing and able to take on a case of the
tremendous magnitude proposed by plaintiffs.”) Accordingly, the undersigned
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RECOMMENDS that the Court DENY Plaintiff’s request for appointment of counsel.
PROCEDURE ON OBJECTIONS
If Plaintiff seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
Plaintiff is specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
Date: December 1, 2011

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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