McClure v. Livingston et al

Filing 14

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ON PLAINTIFF'S MOTION FOR CLASS CERTIFICATION; adopting 7 Report and Recommendations, denying 3 MOTION to Certify Class filed by Robert Troy McClure. Signed by Judge David Folsom on 11/8/11. (mrm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
ROBERT TROY McCLURE

§

v.

§

BRAD LIVINGSTON, ET AL.

§

CIVIL ACTION NO. 5:11cv180

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
ON PLAINTIFF’S MOTION FOR CLASS CERTIFICATION
The Plaintiff Robert McClure, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court ordered that
the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3)
and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United
States Magistrate Judges.
McClure has filed a motion for certification of the lawsuit as a class action. On October 17,
2011, the Magistrate Judge issued a Report recommending that the motion for certification of the
case as a class action be denied. McClure filed objections to the Report on November 2, 2011.
The Court has conducted a careful de novo review of the pleadings in this case, including the
Plaintiff’s motion for class certification, the Magistrate Judge’s Report, and the Plaintiff’s objections
thereto. Upon such de novo review, the Court has concluded that the Report of the Magistrate Judge
is correct and that the Plaintiff’s objections are without merit. The Court would further note that the
Plaintiff Robert McClure has accumulated three strikes within the meaning of 28 U.S.C. §1915(g),
as of September 29, 2011, and thus necessarily cannot serve as an adequate class representative as

1

required by Rule 23(a)(4), Fed. R. Civ. P.1 Cf. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.
1975) (pro se prisoners are not adequate representatives fairly able to represent the class); Wright,
Miller & Kane, Federal Practice and Procedure, §1769.1 at 450 and n.13 (3rd ed. 2005) (stating as
a rule that “class representatives cannot proceed pro se). It is accordingly

.

ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate

Judge is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Plaintiff’s motion for class certification, filed September 30, 2011
(docket no. 3) is hereby DENIED.

SIGNED this 8th day of November, 2011.

____________________________________
DAVID FOLSOM
UNITED STATES DISTRICT JUDGE

See McClure v. Holder, et al., civil action no. 5:08cv804 (W.D.Tex., dismissed as frivolous
December 5, 2008, appeal dismissed September 8, 2009); McClure v. Baggett, civil action no.
5:10cv79 (E.D.Tex., dismissed as frivolous May 24, 2010, no appeal taken); McClure v.Morales,
civil action no. 5:09cv164 (W.D.Tex., dismissed February 11, 2011, appeal dismissed as frivolous
September 29, 2011).
1

2