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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ROBERT FLOYD,

Plaintiff,

vs. Case No. 4:10cv289-RH/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. 9. 

Plaintiff alleges the high level of soy in the food served in Florida prisons has caused

him health problems which arose after implementation of the soy protein diet, and he

claims his medical "symptoms are consistent with the symptoms associated with soy

poisoning." Id., at 8.

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

requesting the appointment of counsel. Doc. 28. Defendants have filed a response in

opposition to Plaintiff's motion. Doc. 29. 

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Plaintiff has been proceeding in this case without a lawyer. A prerequisite for

class action certification is a finding by the Court that the representative party or parties

can "fairly and adequately protect the interest of the class." FED. R. CIV. P. 23(a)(4). It

is well established, however, that a pro se plaintiff "cannot be an adequate class

representative." Gray v. Levine, 455 F. Supp. 267, 268 (D. Md. 1978), citing Oxendine

v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). "[T]he competence of a layman is

'clearly too limited to allow him to risk the rights of others.'" Oxendine, 509 F.2d at

1407, quoted in Fymbo v. State Farm Fire and Cas. Co., 213 F.3d 1320, 1321 (10th Cir.

2000); see also Hussein v. Sheraton New York Hotel, 100 F. Supp. 2d 203, 205-06

(S.D.N.Y. 2000); Klocek v. Gateway, Inc., 104 F. Supp. 2d 1332, 1343-44 (D. Kan.

2000).

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

Appointment of counsel in a civil case is not a constitutional right, but 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. Plaintiff's motion for counsel should be denied as

counsel is not warranted at this time. As the Court review the merits of this case, the

need for counsel will be independently evaluated and counsel will be sought, if deemed

necessary.

Case No.: 4:10cv289-RH/WCS

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In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's motion

to certify this case as a class action and motion for the appointment of counsel, doc. 28,

be DENIED, and the case be REMANDED for further proceedings. 

IN CHAMBERS at Tallahassee, Florida, on April 27, 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.

Case No.: 4:10cv289-RH/WCS

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