(PC) Wilson v. Mercado ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DAVID WAYNE WILSON, Case No. 1:22-cv-00278-ADA-SAB (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING PLAINTIFF’S MOTION 12 v. FOR CLASS CERTIFICATION BE DENIED 13 GABINO MERCADO, et al., (ECF No. 28) 14 Defendants. 15 16 Plaintiff David Wayne Wilson is proceeding pro se and in forma pauperis in this civil 17 rights action filed pursuant to 42 U.S.C. § 1983. 18 Currently before the Court is Plaintiff’s motion for class certification, August 31, 2022. 19 I. 20 BACKGROUND 21 This action is proceeding on Plaintiff’s unconstitutional conditions of confinement claim 22 against Defendants Mercado and Taylor and Plaintiff’s retaliation claim against Defendant 23 Mercado. 24 On August 30, 2022, the Court granted Defendants’ request to extend the time to file a 25 responsive pleading which is currently due on or before December 5, 2022. (ECF No. 27.) 26 As previously stated, Plaintiff seeks class certification of this action. (ECF No. 28.) 27 /// /// 1 II. 2 DISCUSSION 3 District courts in this circuit can provisionally certify a class for the purposes of a 4 preliminary injunction. See Al Otro Lado v. Wolf, 952 F.3d 999, 1005 n.4 (9th Cir. 5 2020) (noting that the Ninth Circuit has “approved provisional class certification for purposes of 6 preliminary injunction proceedings”) (citing Meyer v. Portfolio Recovery Assocs., LLC, 707 7 F.3d 1036, 1041– 143 (9th Cir. 2012) (concluding that “the district court acted within its 8 discretion when it ruled that [plaintiff] met the commonality, typicality, and adequacy 9 requirements of [Federal Rule of Civil Procedure] 23(a) and did not abuse its discretion by 10 granting provisional class certification.”). 11 Pursuant to Federal Rule of Civil Procedure 23, a party seeking class certification must 12 establish the following prerequisites: (1) the class is so numerous that joinder of all members is 13 impracticable; (2) there are questions of law or fact common to the class; (3) the claims or 14 defenses of the representative parties are typical of the claims or defenses of the class; and (4) 15 the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. 16 P. 23(a). 17 If these four prerequisites—commonly referred to as numerosity, commonality, 18 typicality, and adequacy—are satisfied, then the party seeking class certification must also 19 satisfy one of the three subsections of Rule 23(b). Here, Plaintiff seeks class certification 20 under Rule 23(b)(2), which requires a showing that Defendant “has acted or refused to act on 21 grounds that apply generally to the class, so that final injunctive relief or corresponding 22 declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)). 23 The party seeking class certification bears the burden of establishing conformity with 24 these requirements and must do so by producing facts that “affirmatively demonstrate” that 25 certification is warranted. Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Wal-Mart 26 Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). Only after it has conducted a “rigorous 27 analysis” of these facts and determined that they show “actual, not presumed, conformance” 1 F.3d 970, 981 (9th Cir. 2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 161 2 (1982)); see also Comcast, 569 U.S. at 33–34 (extending the “rigorous analysis” requirement 3 to Rule 23(b)); Patel v. Nike Retail Servs., Inc., 14-cv-4781-RS, 2016 WL 1241777, at *3 (N.D. 4 Cal. Mar. 29, 2016) (“This ‘rigorous’ analysis applies both to Rule 23(a) and Rule 23(b).”). A 5 court must review the merits of a party's substantive claim only if they overlap with issues 6 touching on class certification. Ellis, 657 F.3d at 981 (citing Wal-Mart Stores Inc., v. Dukes, 7 564 U.S. 338, 350–51 (2011)); Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 8 (2013) (“Rule 23 grants courts no license to engage in free-ranging merits inquiries at the 9 certification stage. 10 Merits questions may be considered to the extent—but only to the extent—that they are 11 relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”). 12 “The decision to grant or deny class certification is within the trial court's discretion.” Bateman 13 v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010) (citing Yamamoto v. Omiya, 564 14 F.2d 1319, 1325 (9th Cir. 1977)). If a court does decide to certify a class, it must define the class 15 claims and issues and appoint class counsel. Fed. R. Civ. P. 23(c)(1). Finally, “[w]hen 16 appropriate, a class may be divided into subclasses that are each treated as a class under this 17 rule.” Fed. R. Civ. P. 23(c)(5). 18 One of the prerequisites for a class action is that “the representative parties will fairly and 19 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). A class action may not be 20 certified where the representative parties are without counsel. See McShane v. United States, 366 21 F.2d 286, 288 (9th Cir. 1966) (non-lawyer had no authority to appear as an attorney for other 22 persons in a purported class action); see also C.E. Pope Equity Trust v. United States, 818 F.2d 23 696, 697 (9th Cir. 1987) (while a non-attorney may represent himself, he has no authority to 24 appear as an attorney for others); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 25 1975) (plain error to permit a prisoner proceeding pro se to represent fellow prisoner in a class 26 action). “This rule is an outgrowth not only of the belief that a layman, untutored in the law, 27 cannot ‘adequately represent’ the interests of the members of the ‘class,’ but also out of the long- 1 standing general prohibition against even attorneys acting as both class representative and 2 counsel for the class.” Huddleston v. Duckworth, 97 F.R.D. 512, 514 (N.D. Ind. 1983). 3 Here, Plaintiff is proceeding pro se and this case therefore cannot be certified as 4 a class action unless counsel is appointed. It is well established that a layperson cannot 5 ordinarily represent the interests of a class. See McShane v. United States, 366 F.2d 286 (9th Cir. 6 1966). This rule becomes almost absolute when, as here, the putative class representative is 7 incarcerated and proceeding pro se. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). 8 In direct terms, Plaintiff has not shown that any of the prospective co-plaintiffs can “fairly and 9 adequately protect the interests of the class” as required by Fed. R. Civ. P. 23(a)(4). See Martin 10 v. Middendorf, 420 F. Supp. 779 (D.D.C. 1976). A plaintiff's privilege to appear in propria 11 persona is a “privilege ... personal to him. He has no authority to appear as an attorney for others 12 than himself.” McShane v. U.S., 366 F.2d 286, 288 (9th Cir. 1966), citing Russell v. United 13 States, 308 F.2d 78, 79 (9th Cir. 1962); Collins v. O'Brien, 93 U.S.App.D.C. 152, 208 F.2d 44, 14 45 (1953). The Court declines to appoint counsel and certify a class because Plaintiff has not 15 shown that the four prerequisites to a class action under Rule 23(a) of the Federal Rules of Civil 16 Procedure, that is, numerosity, typicality, commonality, and adequacy of representation, are met 17 in this case. Plaintiff's motion for class certification should therefore be denied. 18 III. 19 RECOMMENDATION 20 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motion for 21 class certification, filed on August 31, 2022, be denied. 22 This Findings and Recommendation will be submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 24 days after being served with this Findings and Recommendation, the parties may file written 25 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 26 Findings and Recommendation.” The parties are advised that failure to file objections within the 27 1 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ September 1, 2022 ‘ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28