(PC) Thomas v. Fry ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 OTIS MICHAEL THOMAS, No. 2:19-cv-1041 KJM CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 J.C. FRY, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed a motion asking that this case 18 proceed as a class action. However, no other plaintiffs are identified in the operative second 19 amended complaint, nor is a class defined. The claims in plaintiff’s second amended complaint, 20 and the claims upon which this action proceeds pertain to plaintiff only. 21 Furthermore, as to whether plaintiff is capable to represent the interests of a class, it is 22 well established that a layperson cannot ordinarily represent the interests of a class. See McShane 23 v. United States, 366 F.2d 286 (9th Cir. 1966). This rule becomes almost absolute when, as here, 24 the putative class representative is incarcerated and proceeding pro se. Oxendine v. Williams, 25 509 F.2d 1405, 1407 (4th Cir. 1975). In direct terms, plaintiff cannot “fairly and adequately 26 protect the interests of the class,” as required by Rule 23(a)(4) of the Federal Rules of Civil 27 Procedure. See Martin v. Middendorf, 420 F. Supp. 779 (D.D.C. 1976). 28 ///// ] Accordingly, IT IS HEREBY RECOMMENDED that plaintiff's motion that this action 2 || proceed as a class action (ECF No. 43) be denied. 3 These findings and recommendations are submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 5 || after being served with these findings and recommendations, any party may file written 6 || objections with the court and serve a copy on all parties. Such a document should be captioned 7 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 8 | objections shall be served and filed within fourteen days after service of the objections. The 9 || parties are advised that failure to file objections within the specified time may waive the right to 10 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 11 |) Dated: June 29, 2021 fed) / dha MIG f- A. "2 CAROLYNK.DELANEY 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 | 4 7 thom1041.ca 18 19 20 21 22 23 24 25 26 27 28