Edward Eugene YOUNG Plaintiff, v. A.T. WALL, et al., Defendants, 228 F.R.D. 411

ORDER SMITH, District Judge. The Report and Recommendation of United States Magistrate Judge Jacob Hagopian filed on May 3, 2005, in the above-captioned matter is accepted pursuant to Title 28 United States Code § 636(b)(1). Plaintiffs Motion for Class Certification is DENIED. Report and Recommendation HAGOPIAN, Senior United States Magistrate Judge. Edward Eugene Young (“Young” or “plaintiff”), an inmate legally incarcerated at the Rhode Island Department of Corrections (“RIDOC”), Adult Correctional Institutions, filed suit under 42 U.S.C. § 1983 alleging a violation of the Takings Clause of the Fifth Amendment.

Despite having able counsel to represent his interests in this case, the plaintiff — pro se filed a motion for class certification pursuant to Fed.R.Civ.P. 23. Plaintiffs counsel has taken no position on this motion. The defendant, however, filed an objection thereto. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(

B) for a report and recommendation. For the reasons that follow, I recommend that the plaintiffs motion for class certification be denied. Background Plaintiff is currently a prisoner at the Adult Correctional Institutions. While confined, plaintiff has worked at the prison providing laundry services and has earned a small amount of wages. On August 18, 2003, Young filed an Amended Complaint that asserted a list of seven claims for relief under 42 U.S.C. § 1983.

All of the claims have been dismissed pursuant to Fed.R.Civ.P. 12(b)(6), except plaintiffs claim that RIDOC improperly “takes” the interest earned on his inmate accounts. Plaintiff, represented by counsel, has now filed a pro se motion for class certification pursuant to Fed.R.Civ.P. 23. Defendant has objected. Discussion Rule 23(

a) of the Federal Rules of Civil Procedure requires that parties seeking class certification demonstrate: (1) the class is so numerous that joinder of all parties is impracticable; (2) there are questions of law or fact common to the class; (3) the claims and defenses of the representative parties are typical of those of the class; and (4) the representative party or parties will fairly and adequately protect the interests of the class. See Fed.R.Civ.P. 23(a). Individuals appearing pro se may not adequately represent and protect the interests of a class. See Fymbo v. State Farm Fire & Cas.

Co., 213 F.3d 1320, 1321 (10th Cir.2000)(holding that class representatives cannot appear pro se); McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 162 (5th Cir.1995) (stating that “because [the plaintiff] is proceeding pro se and his own complaint failed to state a cause of action, his ability to serve as an adequate representative of the class is dubious”); Oxendine v.

Williams, 509 F.2d 1405, 1407 (4th Cir.1975) (denying certification of a class with a pro se representative because “the competence of a layman representing himself [is] clearly too limited to allow him to risk the rights of others”); Avery v. Powell, 695 F.Supp. 632, 643 (D.N.H.1988) (denying class certification because “[a] pro se plaintiff may not possess the knowledge and experience necessary to protect the interests of the class as required by Rule 23(a)(4)”). Here, plaintiffs counsel did not file the instant motion for class certification. Plaintiff filed the motion pro se.

He apparently seeks to represent the proposed class pro se. Plaintiff is not an attorney. Accordingly, I find that the plaintiff cannot adequately protect the interests of those purported class members he seeks to represent. I therefore recommend that plaintiffs motion for class certification be denied. Conclusion For the reasons stated above, I recommend that plaintiffs motion for class certification be denied. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32.

Failure to file timely, specific objections to the report constitutes waiver of both the right to review by the district court and the right to appeal the district court’s decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986)(per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980).