Brewster v. Aramark Correctional Services

Filing 61

REPORT AND RECOMMENDATIONS re 20 MOTION to Certify Class filed by Gary A. Brewster. It is RECOMMENDED that Plaintiff's Motion for Determination as Class Action Under Fed. Rule 23(c)(1), ECF 20 , be DENIED without prejudice to renewal should counsel enter an appearance on behalf of plaintiff. Objections to R&R due by 8/25/2014. Signed by Magistrate Judge Norah McCann King on 8/6/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

GARY A. BREWSTER,
Plaintiff,
Case No. 2:14-cv-273
Judge Marbley
Magistrate Judge King

v.
ARAMARK CORP.,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, an inmate incarcerated at Noble Correctional
Institution (“NCI”), brings this civil action for declaratory,
injunctive and monetary relief in connection with defendant’s food
service.

Plaintiff, who is proceeding without the assistance of

counsel, has filed a motion asking this Court “for a determination
that this civil action is a CLASS ACTION.”

Plaintiff’s Motion for

Determination as Class Action under Fed. Rule 23(c)(1), ECF 20,
PageID# 119 (emphasis in original).
Plaintiff identifies three putative classes of plaintiffs:

(1)

“2500 similarly situated inmates at N.C.I.”; (2) “All Similarly
Situated ODRC Inmates in 28 Prisons Under Contract”; and (3) “The
Citizens of and/or Tax-payers of Ohio.”

Id. at 2-6.

Plaintiff

apparently intends to represent the first two classes and explains

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that movant Karl Wetherby,1 who expects to be released from confinement
at NCI on April 26, 2014, is available to represent the third putative
class.

Id. at 6.

Pro se prisoners cannot fairly represent a class of plaintiffs.
See, e.g., Palasty v. Hawk, No. 00-5840, 15 Fed. Appx. 197, 200 (6th
Cir. June 20, 2001) (citing Fymbo v. State Farm Fire & Cas. Co., 213
F.3d 1320, 1321 (6th Cir. 2000)); Oxendine v. Williams, 509 F.2d 1405,
1407 (4th Cir. 1975)): Holmes v. Michigan Dep’t of Corrections, 805
F.2d 1034 (Table), 1986 U.S. App. LEXIS 31550, at *6-7 (6th Cir. Oct.
1 1986). Plaintiff cannot, therefore, adequately represent a class of
plaintiffs in this action.

Moreover, the record does not

affirmatively establish that Mr. Wetherby has been released from
confinement. In any event, because he is not represented by counsel,
Mr. Wetherby cannot serve as an adequate class representative.
It is therefore RECOMMENDED that Plaintiff’s Motion for
Determination as Class Action Under Fed. Rule 23(c)(1), ECF 20, be
DENIED without prejudice to renewal should counsel enter an appearance
on behalf of plaintiff.
If any party 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
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

Mr. Wetherby has filed a motion to intervene in this action and seeks leave
to proceed in forma pauperis. ECF 9, 10.

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must be filed within fourteen (14) days after being served with a copy
thereof.

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
de novo review by the District Judge and 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); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

August 6, 2014

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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