Alford v. Kerestes et al
Filing
43
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 7/7/14. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CRAIG ALFORD,
Petitioner
v.
:
No. 3:13cv2800
:
:
(Judge Munley)
:
SUPERINTENDENT KERESTES,
: (Magistrate Judge Mehalchick)
PENNSYLVANIA BOARD OF
:
PROBATION & PAROLE, and
:
PENNSYLVANIA ATTORNEY
:
GENERAL,
:
Respondents
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court is Petitioner Craig Alford’s motion to recuse (Doc. 6)
and Magistrate Judge Karoline Mehalchick’s report and recommendation
(hereinafter “R&R”) regarding petitioner’s motions for class certification and
appointment of class counsel (Doc. 37). The matters are fully briefed and ripe
for disposition.
Background
Petitioner Craig Alford (hereinafter “petitioner”) filed a pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 15, 2013.1
(Doc. 1). Petitioner challenges his continued incarceration contending that the
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The petition was assigned to Magistrate Judge Karoline Mehalchick,
and on June 17, 2014, Judge Mehalchick order the petition served on
respondents. (Doc. 36).
Pennsylvania Board of Probation and Parole’s (hereinafter “the Board of
Probation”) decision to deny him parole on October 24, 2013 violated his
substantive due process rights under the Fourteenth Amendment. (Id. at 6).
Petitioner also asserts that the Board of Probation is retaliating against him for
accessing the courts in contravention of the Eighth Amendment. (Id. at 7).
Subsequent to filing his petition for a writ of habeas corpus, petitioner
filed a motion to recuse the undersigned judge on November 22, 2013. (Doc.
6). Three days later, petitioner filed a motion pursuant to Federal Rule of Civil
Procedure 23(c) to certify a class action on behalf of every inmate that has
been denied parole. (Doc. 7-1). Simultaneous with his request to certify a
class action, petitioner filed a motion under Federal Rule of Civil Procedure
23(g) to appoint class counsel. (Doc. 7). Petitioner filed a second motion to
certify a class action and appoint class counsel on January 21, 2014. (Doc.
13).
On June 17, 2014, Magistrate Judge Mehalchick recommended denying
petitioner’s motions for certification of a class action and appointment of class
counsel. (Doc. 37). Petitioner filed objections to the R&R on June 25, 2014
making the matter ripe for disposition.
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Standard of Review
In disposing of objections to a magistrate judge’s report and
recommendation, the district court must make a de novo determination of
those portions of the report against which objections are made. 28 U.S.C. §
636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983).
The court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. Henderson v. Carlson, 812
F.2d 874, 877 (3d Cir. 1987). The district court judge may also receive further
evidence or recommit the matter to the magistrate judge with instructions. Id.
Plaintiff also filed a motion to recuse or disqualify. Federal law provides
that a judge “shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a). “Beliefs or opinions
that merit recusal must involve an extrajudicial factor; ‘for example, if a judge
has acquired a dislike of a litigant because of events occurring outside of the
courtroom, a duty to recuse might ensue.’” United States v. Vampire Nation,
451 F.3d 189, 208 (3d Cir. 2006) (quoting United States v. Antar, 53 F.3d 568,
574 (3d Cir. 1995)).
“‘A party seeking recusal need not show actual bias on the part of the
court, only the possibility of bias . . . Under § 455(a), if a reasonable man, were
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he to know all the circumstances, would harbor doubts about the judge’s
impartiality under the applicable standard, then the judge must recuse.’”
Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004)
(quoting Krell v. Prudential Ins. Co. of Am. (In re Prudential Ins. Co. Am. Sales
Practice Litig. Agent Actions), 148 F.3d 283, 343 (3d Cir. 1998)). Moreover, a
judge is required to disqualify himself when “he has a personal bias or
prejudice concerning a party, or personal knowledge of disputed evidentiary
facts concerning the proceeding.” 28 U.S.C. § 455(b)(1). Bias and prejudice
“connote a favorable or unfavorable disposition or opinion that is somehow
wrongful or inappropriate, either because it is undeserved, or because it rests
upon knowledge that the subject ought not to possess . . . or because it is
excessive in degree.” Liteky v. United States, 510 U.S. 540, 550 (1994)
(emphasis in orginal).
Discussion
Magistrate Judge Mehalchick recommends denying petitioner’s motions
for class certification and appointment of class counsel. Petitioner filed two
objections. First, petitioner argues that Magistrate Judge Mehalchick lacks the
authority to preside over his case. Second, petitioner contends that class
certification and appointment of class counsel are appropriate. Additionally,
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petitioner seeks the court’s recusal contending the undersigned judge is
biased against him. The court will address these issues in seriatim.
A. Magistrate Judge’s Authority
Petitioner initially objects to Magistrate Judge Mehalchick’s authority to
rule upon his motions for class certification and appointment of class counsel.
The Federal Magistrate Act provides that a magistrate judge cannot directly
rule upon a motion for class certification. See 28 U.S.C. § 636(b)(1)(A)
(“Notwithstanding any provision of law to the contrary . . . a [district court]
judge may designate a magistrate judge to hear and determine any pretrial
matter pending before the court, except a motion . . . to dismiss or to permit
maintenance of a class action . . . .”). A magistrate judge can, however, issue
a report and recommendation, which is subject to the district court’s de novo
review. See 28 U.S.C. §§ 636(b)(1)(B)-(C) (“A [district court] judge may also
designate a magistrate judge to conduct hearings . . . and to submit . . .
proposed findings of fact and recommendations for the disposition, by a judge
of the court, of any motion [to dismiss or to permit maintenance of a class
action] . . . . The magistrate judge shall file his proposed findings and
recommendations . . . with the court and a copy shall forthwith be mailed to all
parties.”).
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Stated differently, the magistrate judge makes a recommendation with
regard to petitioner’s motion for class certification. Next, the district court
makes a de novo determination of those portions of the recommendation
against which objections are made. 28 U.S.C. § 636(b)(1)(c); Sullivan, 723
F.2d at 1085. The court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. Henderson, 812
F.2d at 877. Therefore, petitioner’s objection will be overruled because the
district court judge makes the final determination regarding petitioner’s request
for class certification, not the magistrate judge.
B. Class certification and class counsel
Magistrate Judge Mehalchick recommends denying petitioner’s motion
for class certification and appointment of class counsel. Four prerequisites
must be met to obtain certification of a class: 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. See FED. R.
CIV. P. 23(a). A district court can only certify a class if all four requirements of
Rule 23(a) are met. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305,
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309 (3d Cir. 2008); In re Prudential Ins. Co. of Am. Sales Practice Litig., 148
F.3d 283, 308-09 (3d Cir. 1998).
Petitioner, who is proceeding pro se, cannot satisfy the fourth element.
See Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.1975) (finding that “[I]t
is plain error to permit [an] imprisoned litigant who is unassisted by counsel to
represent his fellow inmates in a class action.”); see also Alexander v. N.J.
State Parole Bd., 160 F. App’x 249, 250 n.1 (3d Cir. 2005) (per curiam) (noting
that “a prisoner proceeding pro se may not seek relief on behalf of his fellow
inmates.”). Thus, pro se litigants are generally not appropriate as class
representatives because “the competence of a layman representing himself
[is] clearly too limited to allow him to risk the rights of others.” Oxendine, 509
F.2d at 1407; see also Hagan v. Rogers, 570 F.3d 146, 159 (3d Cir. 2009)
(same). Accordingly, because petitioner is an incarcerated, pro se litigant, he
is not an appropriate representative of the proposed class. Therefore, the
court will adopt Magistrate Judge Mehalchick’s recommendation denying
petitioner’s request for class certification.
Finally, petitioner requests the appointment of class counsel. The Third
Circuit Court of Appeals has stated that “under the plain language of [Rule
23(g)], a district court’s decision to certify a class must precede the
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appointment of class counsel.” Sheinberg v. Sorensen, 606 F.3d 130, 132,
134 (3d Cir. 2010) (emphasis in original). Because the court will deny
petitioner’s request for class certification, the court will also deny his motion for
appointment of class counsel.
C. Recusal
Finally, Petitioner asserts that the undersigned judge has a personal bias
and prejudice against him. Accordingly, the petitioner seeks the judge’s
recusal. We find no justification for recusal.
First, the petitioner asserts that the court’s previous adverse decisions
against him establish extrajudicial bias and prejudice. A judge’s opinions
formed on the basis of events occurring in the course of prior proceedings,
however, do not constitute a basis for recusal unless they display a
“deep-seated and unequivocal antagonism that would render fair judgment
impossible.” Liteky v. United States, 510 U.S. 540, 555-56 (1994). Petitioner
has failed to allege any “deep-seated and unequivocal antagonism.” The
court’s prior rulings, therefore, do not provide any basis for recusal.
Petitioner also raises the issue that the court has “shown personal bias
to petitioner . . . .” (Doc. 6, Mot. to Disqualify at 3). Petitioner, however, fails
to provide any evidence of what personal bias the court has exhibited toward
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him. See Vampire Nation, 451 F.3d at 208 (stating that “[b]eliefs or opinions
that merit recusal must involve an extrajudicial factor; ‘for example, if a judge
has acquired a dislike of a litigant because of events occurring outside of the
courtroom, a duty to recuse might ensue.’” (quoting United States v. Antar, 53
F.3d at 574)). Thus petitioner’s unsubstantiated allegations of personal bias
do not merit recusal.
Conclusion
For the reasons stated above, the court will overrule plaintiff’s objections
and adopt the R&R denying petitioner’s motions for class certification and
appointment of class counsel. The court will also deny petitioner’s motion for
recusal. An appropriate order follows.
Date:
07/07/14
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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