Opinion
Case No. 3:16cv629-LC-CJK
08-22-2017
KEVIN FOSTER-BEY, Plaintiff, v. RON HILL, et al, Defendants.
REPORT AND RECOMMENDATION
This matter is before the court on plaintiff's "Ex Parte Motion to Treat as a Class Action" (docs. 3, 9) and Motion for Preliminary Injunction (docs 4, 10). After reviewing the motions, the undersigned recommends that both motions be denied.
Plaintiff, proceeding pro se and in forma pauperis, is a former inmate of the Florida Department of Corrections ("FDOC"). At the time he initiated this action, he was confined at Walton Correctional Institution ("Walton CI"); he has subsequently been released from prison. In the complaint (doc. 13), plaintiff alleges employees of Walton CI violated his constitutional rights by preventing him from practicing his religion as a member of the Moorish Science Temple of America ("MSTA"). He claims prison staff: (1) prevented MSTA members from adhering to the tenets of their religion; and (2) treated the MSTA differently from other religions.
See Florida Department of Corrections, Corrections Offender Network, Offender Information Search, http://www.dc.state.fl.us/OffenderSearch/Search.aspx
The "Ex Parte Motion to Treat as a Class Action" (docs. 3, 9) should be denied because plaintiff is proceeding pro se. A pro se litigant cannot adequately represent the interests of other individuals in a class action. See Bass v. Benton, 408 F. App'x 298, 298-99 (11th Cir. 2011) (The Eleventh Circuit has "interpreted 28 U.S.C. § 1654, the general provision permitting parties to proceed pro se, as providing 'a personal right that does not extend to the representation of the interests of others.'") (quoting Timson v. Sampson, 518 F.3d 870, 873 (11th Cir. 2008)); Guajardo v. Luna, 432 F.2d 1324, 1324 (5th Cir. 1970) ("There is no constitutional guarantee that non-attorneys may represent other people in litigation.").
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. --------
Likewise, plaintiff's Motion for Preliminary Injunction (docs 4, 10) should be denied because plaintiff is no longer incarcerated at Walton CI. Plaintiff's release from FDOC custody moots any claim for injunctive relief. See, e.g., Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir. 1988) (holding inmate's claims for declaratory and injunctive relief regarding treatment at a facility at which inmate was no longer incarcerated were moot); Zatler v. Wainwright, 802 F.2d 397, 399 (11th Cir. 1986) (holding inmate's release from prison mooted claim for declaratory and injunctive relief against head of prison); Dudley v. Stewart, 724 F.2d 1493, 1494 (11th Cir. 1984) (holding transfer from county jail to state prison mooted claims for injunctive and declaratory relief against county jailers).
Accordingly, it is respectfully RECOMMENDED:
1. That plaintiff's "Ex Parte Motion to Treat as a Class Action" (docs. 3, 9) be DENIED.
2. That plaintiff's Motion for Preliminary Injunction (docs 4, 10) be DENIED.
At Pensacola, Florida, this 22nd day of August, 2017.
/s/ Charles J . Kahn, Jr.
CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations may be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only, and does not control. A copy of objections shall be served upon the Magistrate Judge and all other parties. A party failing to object to a Magistrate Judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See U.S. Ct. of App. 11th Cir. Rule 3-1; 28 U.S.C. § 636.