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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ROBERT LEE HONG,

Plaintiff,

vs. Case No. 4:10cv155-SPM/WCS

WALTER McNEIL, et al.,

Defendants.

 /

SECOND REPORT AND RECOMMENDATION

Plaintiff, a prisoner incarcerated within the Florida Department of Corrections,

filed this civil rights case to challenge the food menu served to prisoners. Doc. 19. 

Plaintiff alleges that the high level of soy in the food has caused him health problems

which arose after implementation of the soy protein diet, and he claims his "symptoms

are consistent with the symptoms associated with soy poisoning." Id. 

After two notices of appearance were filed in this case, doc. 31 and 33,

Defendants filed a motion for summary judgment. Doc. 44. The report and

recommendation to deny that motion as premature has been adopted. Docs. 48, 52.

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Defendants have ten days in which to file an Answer to the third amended complaint,

doc. 19. 

Plaintiff has filed a motion to certify this case as a class action and motion

requesting the appointment of counsel. Doc. 50. Defendants have filed an objection to

Plaintiff's motion. Doc. 51.

Plaintiff is not represented by a lawyer. Pro se litigants are not adequate class

representatives to maintain a class action. Hagan v. Rogers, 570 F.3d 146, 158-159

(3rd Cir. 2009); Fymbo v. State Farm Fire and Cas. Co., 213 F.3d 1320 (10th Cir. 2000);

Ponton v. McNeil, 2010 WL 5463003, *1 (N.D. Fla. Dec 29, 2010) (No. 3:10CV537 WS

MD) (and cases cited).

Plaintiff has also filed a motion for appointment of counsel. Doc. 50. 

Appointment of counsel in a civil case is not a constitutional right. It is a privilege that is

justified only by exceptional circumstances, such as where the facts and legal issues

are so novel or complex as to require the assistance of a trained practitioner. Fowler v.

Jones, 899 F.2d 1088 (11th Cir. 1990). Plaintiff has not demonstrated that these legal

issues are either novel or complex. Thus, appointment of counsel is not warranted. As

the court reviews the merits of this case it will independently assess the complexity of

the issues and will, on its own motion, appoint counsel, if necessary.

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Accordingly, it is RECOMMENDED that Plaintiff's motion to certify this case as a

class action and to appoint counsel, doc. 50, be DENIED, and the case be REMANDED

for further proceedings. 

IN CHAMBERS at Tallahassee, Florida, on April 25, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

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