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. 28)
Michael J. Watanabe United States Magistrate Judge.
case is before the Court pursuant to an Order Referring Case
entered by Judge Raymond P. Moore on February 12, 2018.
(Docket No. 19.) Now before the Court is Plaintiff's
Declared Motion for Class Action Certification - Due to
Pending Motion for Counsel (Docket No. 28). Defendants have
not filed a response. Judge Moore referred the subject motion
to the undersigned Magistrate Judge on February 26, 2018.
(Docket No. 29.) 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 recommendation.
Lewis T. Babcock succinctly summarized Plaintiff's claims
in his Order to Dismiss in Part and to Assign Case, entered
on February 9, 2018. (Docket No. 18.) Plaintiff seeks to
certify a class action regarding the allegedly unlawful
conduct that occurred while he was incarcerated at the
Arrowhead Correctional Center (“ACC”).
Plaintiff's Second Amended Complaint (Docket No. 16)
asserts two claims for relief: (1) the § 1983 claims
asserted against Defendants Hydenthal, Riley, Taylor, Santos
and Miller, in their individual capacities, for violation of
Plaintiff's rights under the First Amendment free
exercise clause, the Fourteenth Amendment equal protection
clause, and for unconstitutional retaliation; and, (2) the
§1983 claims asserted against Defendant Cella, in his
individual capacity, for unconstitutional retaliation.
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.
Fed. R. 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 Second Am ended Complaint (Docket No. 16) nor the subject
motion does Plaintiff even allege, much less establish, the
number of inmates, Muslim or otherwise, that were affected by
the allegedly unconstitutional conduct. He therefore cannot
demonstrate that the joinder of these inmates is
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. 28) 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 ...