(PC) Wilson v. Sherman ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID W. WILSON, Case No.: 1:22-cv-00874 JLT SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR 13 v. CERTIFICATION OF CLASS 14 STUART SHERMAN, et al., (Doc. 10) 15 Defendants. 14-DAY OBJECTION PERIOD 16 17 Plaintiff David W. Wilson is appearing pro se and in forma pauperis in this civil rights 18 action brought pursuant to 42 U.S.C. § 1983. 19 I. PLAINTIFF’S MOTION FOR CERTIFICATION OF CLASS 20 On August 25, 2022, Plaintiff filed a motion for certification of class, citing Fed. R. Civ. 21 P. 23(a). (Doc. 10.) Plaintiff contends his complaint “against B-Facility, California Substance 22 Abuse Treatment Facility, exceeds 40 individuals … and more will be asked to Sign.” (Doc. 10 at 23 1.) The complaint concerns “on-going imminent danger of inadequate” cooling, ventilation and 24 circulation, and the presence of black mold and black dust, at the prison facility. (Id. at 1-2.) 25 Plaintiff contends because “CDCR denys ‘question of law or fact common to the Class members 26 and plaintiff,” denies the “’Typicality’ requirements grievance ‘Group Class,’” certification is 27 appropriate. (Id. at 2.) Plaintiff attaches as exhibits a copy of an “Inmate/Parolee Group Appeal,” 1 related grievance documents (id. at 8-11) in support of his motion. 2 II. DISCUSSION 3 A party requesting class certification must demonstrate that “(1) the class is so numerous 4 that joinder of all members is impracticable; (2) there are questions of law or fact common to the 5 class; (3) the claims or defenses of the representative parties are typical of the claims or defenses 6 of the class; and (4) the representative parties will fairly and adequately protect the interests of the 7 class.” Fed. R. Civ. P. 23(a). 8 Plaintiff is not an attorney and is proceeding without counsel.1 As a prisoner proceeding 9 pro se, Plaintiff is unable to satisfy the above prerequisites. Regarding the fourth prerequisite, 10 “[i]t is well established that pro se prisoner plaintiffs are unable to fairly represent and adequately 11 protect the interests of [a] class,” as required by Fed. R. Civ. P. 23(a)(4). Pickett v. Brown, No. C- 12 11-0445-TEH, 2011 WL 3954553, at *1 (N.D. Cal. 2011) (citations omitted); see also Smith v. 13 Schwarzenegger, 393 Fed. Appx. 518, 519 (9th Cir. 2010) (a layperson cannot ordinarily 14 represent the interests of a class) (citing McShane v. United States, 366 F.2d 286, 288 (9th Cir. 15 1966)); Gann v. Valley State Prison, No. 1:19-cv-01797-GSA, 2020 WL 70077, at *2 (E.D. Cal. 16 2020) (citations omitted). “A litigant appearing in propria persona has no authority to represent 17 anyone other than himself.” Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962) (citation 18 omitted). It “is plain error to permit [an] imprisoned litigant who is unassisted by counsel to 19 represent his fellow inmates in a class action.” Oxendine v. Williams, 509 F.2d 1405, 1407 (4th 20 Cir. 1975). Accordingly, even assuming, arguendo, that Plaintiff met the first three prerequisites 21 for class certification—numerosity, commonality and typicality—Plaintiff cannot meet all 22 prerequisites because he cannot fairly and adequately protect the interests of the class. 23 III. CONCLUSION AND RECOMMENDATIONS 24 For the reasons stated above, IT IS HEREBY RECOMMENDED Plaintiff’s motion for 25 class certification (Doc. 10) be DENIED. 26 These Findings and Recommendations will be submitted to the district judge assigned to 27 1 Plaintiff’s motion for the appointment of counsel was denied by the undersigned in a separate order. 1 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 2 Findings and Recommendations, a party may file written objections with the Court. The 3 document should be captioned, “Objections to Magistrate Judge’s Findings and 4 Recommendations.” Failure to file objections within the specified time may result in waiver of 5 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 6 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 IT IS SO ORDERED. 8 9 Dated: January 18, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27