United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON PLAINTIFF'S DECLARED
MOTION FOR CLASS ACTION CERTIFICATION - DUE TO PENDING MOTION
FOR COUNSEL (DOCKET NO. 39)
MICHAEL J. WATANABE MAGISTRATE JUDGE.
case is before the Court pursuant to an Order Referring Case
entered by Judge Raymond P. Moore on March 13, 2017. (Docket
No. 7.) Now before the Court is Plaintiff's Declared
Motion for Class Action Certification - Due to Pending Motion
for Counsel, (Docket No. 39), to which Defendants Colorado
Department of Corrections (“CDOC”), Vaughn,
Bolton, Grant, Healy, O'Brien, Gebhart, Lengerich,
Brunell, Gillis, Scanga, Lague, Wood, Lorenze, Long, Fowler,
Jimerson, Owens, and Lisac's (collectively
“Defendants”) filed a response. (Docket No. 42.)
Judge Moore referred the subject motion to the undersigned
Magistrate Judge on January 9, 2018. (Docket No. 41.) The
Court has carefully considered the motion. The Court has
taken judicial notice of the Court's file and has
considered the applicable Federal Rules of Civil Procedure
and case law. The Court now being fully informed makes the
following findings of fact, conclusions of law, and
facts of this case were set forth in the undersigned
Magistrate Judge's February 28, 2018 Report and
Recommendation (Docket No. 43) on Defendants' motion to
dismiss (Docket No. 26) and Plaintiff's motion to amend.
(Docket No. 35.) Plaintiff seeks to certify a class action
regarding the allegedly unconstitutional housing conditions
at the Buena Vista Correctional Complex.
are four prerequisites for class certification:
(1) the class is so numerous that joinder of all members is
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class.
Civ. P. 23(a). The party seeking to certify a class bears the
burden of proving that all the requirements of Rule 23 are
met. See Vallario v. Vandehey, 554 F.3d 1259, 1267
(10th Cir. 2009). The Court is required to engage in a
“rigorous analysis” into whether the requirements
of Rule 23 are satisfied. Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 350-51 (2011).
Plaintiff has not met his burden under Rule 23. Indeed, he
failed to establish the first prerequisite. In order to meet
the numerosity requirement, Plaintiff needed to only define
the class adequately and then establish that the class is so
numerous that joinder of all members is impractical. See
Neiberger v. Hawkins, 208 F.R.D. 301, 313 (D. Colo.
2002). While there is no set formula to determine if a class
is so numerous that it should be certified, Plaintiff was
required to present “some evidence of established,
ascertainable numbers constituting the class in order to
satisfy even the most liberal interpretation of the
numerosity requirement.” Rex v. Owens ex rel. State
of Okl., 585 F.2d 432, 436 (10th Cir. 1978). In neither
his Amended Complaint (Docket No. 18) nor the subject motion
does Plaintiff even allege, much less establish, the number
of inmates that were affected by the allegedly
unconstitutional conditions. He therefore cannot demonstrate
that the joinder of these inmates is impracticable.
Plaintiff has not met the very first threshold requirement,
the Court declines to consider whether he has established the
commonality, typicality, and representational requirements.
it is hereby RECOMMENDED that
Plaintiff's Declared Motion for Class Action
Certification - Due to Pending Motion for Counsel, (Docket
No. 39) be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P.
72(b)(2), the parties have fourteen (14) days after service
of this recommendation to serve and file specific written
objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another
party's objections within fourteen (14) days after being
served with a copy. The District Judge need not consider
frivolous, conclusive, or general objections. A party's
failure to file and serve such written, specific objections
waives de novo review of the recommendation by the District
Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985),
and also waives ...