Fountain v. Thaler et al

Filing 159

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 96 Report and Recommendations of the United States Magistrate Judge, and DENYING 48 MOTION for class certification and brief in support filed by Freddie Fountain. Signed by Judge Michael H. Schneider on 1/28/2015. (gsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
FREDDIE FOUNTAIN

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v.

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RICK THALER, ET AL.

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CIVIL ACTION NO. 6:13cv958

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND DENYING MOTION FOR CLASS CERTIFICATION
The Plaintiff Freddie Fountain, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights during his confinement
in the Texas Department of Criminal Justice, Correctional Institutions Division. 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.
Fountain has filed two previous motions asking that this lawsuit be certified as a class action
under Fed. R. Civ. P. 23. These motions have been denied. Fountain then filed a third such motion,
arguing that the majority of his claims pertain to large number of prisoners and not him alone, his
injuries resulted from issues affecting the class, he has met the requirements of numerosity,
commonality, and typicality, he will fairly and adequately represent the interests of the class,
declaratory and injunctive relief is appropriate, and the court is obligated to appoint class counsel.
After review of the motion, the magistrate judge issued a report recommending that
Fountain’s third motion for class certification be denied. Fountain has filed objections to this report.
The Court has conducted a de novo review of those portions of the magistrate judge’s proposed
findings and recommendations to which objection was made. See 28 U.S.C. §636(b)(1) (district
judge shall “make a de novo determination of those portions of the report or specified proposed
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findings or recommendations to which objection is made.”) Upon such de novo review, the Court
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has concluded that the report of the magistrate judge is correct and the Plaintiff’s objections are
without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the report of the magistrate
judge (docket no. 96) is ADOPTED as the opinion of the district court. It is further
ORDERED that the Plaintiff’s third motion for class certification (docket no. 48) is
DENIED.
SIGNED this 28th day of January, 2015.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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