(PC) Papazian v. Doerer

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 MICHAEL BENANTI, Case No. 1:24-cv-01108-CDB (PC) 12 Plaintiff, ORDER TO SEVER ACTION 13 v. ORDER HOLDING IN ABEYANCE 14 J. DOERER, PLAINTIFF’S MOTION FOR INJUNCTION 15 Defendant. ORDER DENYING REQUEST TO EXPEDITE, REQUEST FOR WAIVER TO [16] PROCEED IN FORMA PAUPERIS, REQUEST TO APPOINT COUNSEL, AND [17] REQUEST FOR ORDER PREVENTING 18 RETALIATION 19 ORDER DENYING NON-PARTIES’ MOTIONS TO JOIN CLASS ACTION [20] 21 ORDER TO SUBMIT SIGNED COMPLAINTS [22] (Docs. 1, 3-6) [23] 45-DAY DEADLINE [24] 25 Clerk of the court to open individual cases [26] 27 Plaintiff Michael Benanti (“Plaintiff”), a federal prisoner proceeding pro se, initiated this action on September 18, 2024, with the filing of a complaint on behalf of himself, ten other 1 named plaintiffs (none of whom signed Plaintiff’s complaint), and a purported, putative class of 2 others. (Doc. 1). Plaintiff also has filed a motion for an injunctive order, requests to expedite the 3 case and to be relieved of the requirement to apply for in forma pauperis status, to appoint 4 counsel, and for an order preventing retaliation. (Docs. 3-4). Separately, non-party federal 5 prisoners Aaron M. Carrion and Matthew Higgins-Vogt have filed separate motions to join class 6 action. (Docs. 5-6). Carrion and Higgins-Vogt did not sign the complaint and presently are non7 parties in this action. See generally (Doc. 1). 8 Plaintiff’s Allegations 9 In his complaint, Plaintiff alleges he and others have “endured a month of lock down” 10 ongoing at U.S. Penitentiary Atwater (“USP Atwater”). Id. at 1. Plaintiff asserts that on August 11 9, 2024, a “chemical substance” was introduced into USP Atwater’s mailroom. Id. A mailroom 12 supervisor was exposed to the substance and passed away. Id. The alleged parties responsible 13 were arrested, charged, and are awaiting prosecution. Id. 14 As a result of the incident, Defendant Warden J. Doerer (“Defendant”) initiated a 15 lockdown of USP Atwater. Id. Plaintiff alleges the lockdown, initiated on August 9, 2024, 16 through the date of the filing of the complaint, has affected the entire prison population. Id. at 117 2. Plaintiff “accept[s] being ‘locked down’ while [Defendant] addresses valid safety and security 18 concerns.” Id. at 1. Plaintiff alleges the “intentional putative measures, violation of [Bureau of 19 Prisons “BOP”)] policy, and the violation of constitutional rights [] serve no legitimate 20 penological interest. Id. at 1-2. 21 Plaintiff asserts Defendant has denied him and the entire prison population access to 22 administrative remedies. Id. at 2, 4. Plaintiff alleges Defendant has denied him and the entire 23 prison population access to the news and contact with families and lawyers. Id. at 2. 24 Specifically, Plaintiff alleges all incoming mail, visits, phone access, email access, “revalidating 25 [and] recharging and electronic devices for radio access,” television access, and commissary 26 access to buy radio and batteries have been suspended. Id. 27 Plaintiff also claims Defendant has implemented a local “Green Bag Shakedown” policy 1 ordered to pack their personal property in a green bag. Id. Plaintiff claims that whatever personal 2 property that did not fit into the green bag was confiscated and no confiscation form was 3 provided. Id. Plaintiff alleges that the amount of personal property allowed by BOP policy that 4 fit into an assigned locker far exceeds the space provided in the green bag. Id. at 3. Further, 5 Plaintiff alleges that during this process all legal material including transcripts, discovery, case 6 files, exhibits, and legal books were confiscated. Id. 7 Plaintiff also contends Defendant has failed to provide him and the entire prison 8 population with regular access to health, dental, and psychological services. Id. Plaintiff claims 9 there has been only one opportunity to fill out a “sick call request” while in lockdown. Id. 10 Plaintiff asserts that through this lockdown, there has been no doctor working and available to 11 provide treatment and prescribe medication. Id. Plaintiff claims he has been prohibited from 12 purchasing “the full selection of [over the counter medication] twice per week as is required by 13 BOP policy.” Id. Separately, Plaintiff claims the lockdown has resulted in “reduced calorie cold 14 meals, no access to commissary, no time outside, no recreation, religious services, or education 15 reentry services.” Id. 16 Plaintiff’s Request to Appoint Counsel 17 In support of his request for appointment of counsel, Plaintiff asserts he lacks education 18 and experience to prosecute a class action lawsuit. (Doc. 4 at 2). In anticipation of the Court 19 certifying a class, Plaintiff asserts he requires counsel to investigate and undertake discovery. Id. 20 Plaintiff is informed that he does not have a constitutional right to appointed counsel in 21 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other 22 grounds, 154 F.3d 952 , 954 n. 1 (9th Cir. 1998), and the court cannot require an attorney to 23 represent plaintiff pursuant to 28 U.S.C. § 1915 (e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 24 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances, the court may 25 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 26 1525. Without a reasonable method of securing and compensating counsel, the Court will seek 27 volunteer counsel only in the most serious and exceptional cases. In determining whether 1 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 2 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 3 The Court finds that at this stage in the proceedings, the Court cannot make a 4 determination that Plaintiff is likely to succeed on the merits. Plaintiff has not filed the required 5 in forma pauperis documents and Plaintiff’s complaint has not yet been screened. The Court 6 cannot evaluate the likelihood of success on the merits. 7 The Court must also evaluate Plaintiff’s ability to articulate claims pro se in light of the 8 complexity of the legal issues involved. In this case, the Court notes that Plaintiff's filings reflect 9 Plaintiff is logical and articulate. (See, e.g., Docs. 1, 3, 4). See LaMere v. Risley, 827 F.2d 622 , 10 626 (9th Cir. 1987) (affirming district court’s denial of request for appointment of counsel, where 11 pleadings demonstrated petitioner had “a good understanding of the issues and the ability to 12 present forcefully and coherently his contentions”). Moreover, judges in this district have held 13 that First and Eighth Amendment and due process claims are not complex. See Maldanado v. 14 Merritt, No. 1:23-cv-00482-JLT-SKO PC, 2023 WL 6751114 , at *3 (E.D. Cal. Oct. 12, 2023) 15 (“Eighth Amendment deliberate indifference to serious medical needs claims are not complex”); 16 Smith v. Gonzales, No. 1:17-cv-00436-DAD-GSA-PC, 2022 WL 2133918 , at *1 (E.D. Cal. June 17 14, 2022) (inmate’s First Amendment claims “are not complex”); Bowell v. Montoya, No. 1:1718 cv-00605-LJO-GSA-PC, 2018 WL 4772030 , at *1 (E.D. Cal. Oct. 1, 2018) (due process claims 19 not complex). In short, the Court finds Plaintiff able to articulate her claims in light of their 20 complexity. 21 Next, Plaintiff is advised that neither incarceration nor indigency are exceptional 22 circumstances warranting the appointment of counsel. See Tri v. Gutierrez, No. 1:22-cv-0083623 ADA-SKO (PC), 2023 WL 6930783 , at *4 (E.D. Cal. Oct. 18, 2023); Davis v. Portillo, 2023 WL 24 4979965, at *2; Dijkstra v. Campos, No. 1:21-cv-01223-HBK, 2022 WL 222518 , at *1 (E.D. Cal. 25 Jan. 25, 2022) (“Plaintiff's indigence does not qualify ‘as an exceptional circumstance in a 26 prisoner civil rights case’”); Gipbsin v. Kernan, No. 2:12-cv-0556 KJM DB P, 2021 WL 242570 , 27 at *2 (E.D. Cal. Jan. 25, 2021) (“Plaintiff's inability to afford counsel has no bearing on either his 1 Ramm, No. 2:16-cv-0694 JAM AC P, 2018 WL 6448536 , at *3 (E.D. Cal. Dec. 10, 2018). See 2 also Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (finding that plaintiff failed to 3 demonstrate exceptional circumstances despite his contentions that “the pain from his surgery 4 limited his ability to prepare for trial, and prison officials had denied him access to his legal 5 documents, thereby limiting his ability to prepare for trial”). 6 Plaintiff is further advised that the fact an attorney would be better prepared to litigate and 7 try this action, does not amount to an exceptional circumstance warranting the appointment of 8 counsel. See Rand, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915 (e) 9 when district court denied appointment of counsel despite fact that pro se prisoner “may well 10 have fared better-particularly in the realm of discovery and the securing of expert testimony”); 11 Courtney v. Kandel, No. 2:18-CV-2052-KJM-DMC-P, 2020 WL 1432991 , at *1 (E.D. Cal. Mar. 12 24, 2020) (declining to appoint counsel where plaintiff argued imprisonment “will greatly limit 13 his ability to litigate,” finding such challenges “are ordinary for prisoners pursuing civil rights 14 claim” and cannot form the basis for appointment of counsel); Thornton v. Schwarzenegger, No. 15 10CV01583 BTM RBB, 2011 WL 90320 , at *7 (S.D. Cal. Jan. 11, 2011) (explaining that 16 “[f]actual disputes and anticipated cross-examination of witnesses do not indicate the presence of 17 complex legal issues warranting a finding of exceptional circumstances”). 18 Also, there is little doubt most pro se litigants “find it difficult to articulate [their] claims,” 19 and would be better served with the assistance of counsel. Wilborn v. Escalderon, 789 F.2d 1328 , 20 1331 (9th Cir. 1986). For this reason, in the absence of counsel, federal courts employ 21 procedures which are highly protective of a pro se litigant's rights. See Haines v. Kerner, 404 U.S. 22 519, 520 (1972). In sum, the Court finds no exceptional circumstances warranting the 23 appointment of counsel in this matter (Rand, 113 F.3d at 1525 ) – particularly given, as discussed 24 further below, that Plaintiff may not maintain this case as a class action or otherwise represent a 25 putative class. 26 Plaintiff’s Request to Proceed as Class Action 27 Plaintiff, his proposed co-plaintiffs in his complaint (Doc. 1 at 1), and the non-parties 1 It is well established that a layperson cannot ordinarily represent the interests of a class. See 2 Smith v. Schwarzenegger, 393 Fed. Appx. 518, 519 (9th Cir. 2010) (citing McShane v. United 3 States, 366 F.2d 286, 288 (9th Cir. 1966)). A non-attorney proceeding pro se may bring his own 4 claims to court but may not represent others. Johns v. Cty. of San Diego, 114 F.3d 874 , 876 (9th 5 Cir. 1997); C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (non6 attorney has a right to appear pro se on his/her own behalf, but “has no authority to appear as an 7 attorney for others”); accord Alexander v. New Jersey State Parole Bd., 160 Fed. Appx. 249 , 250 8 n.1 (3d Cir. 2005) (“a prisoner proceeding pro se may not seek relief on behalf of his fellow 9 inmate”) (citing Oxedine v. Williams, 509 F.2d 1405 , 1407 (4th Cir. 1975)). It follows that the 10 request of non-parties Carrion and Higgins-Vogt to join any class (Docs. 5-6) are improper. 11 Separately, the Federal Rules of Civil Procedure and this Court’s Local Rules require that 12 all filed pleadings, motions, and papers be signed by the party personally if the party is 13 unrepresented. See Fed. R. Civ. P. 11(a); Local Rule 131(b). Here, while Plaintiff has signed the 14 complaint (Doc. 1 at 4), none of Plaintiff’s proposed co-plaintiffs (id. at 1) or Carrion and 15 Higgins-Vogt (Docs. 4-5) have signed the complaint. 16 Further, after reviewing the complaint, the Court has determined that Plaintiff and each 17 proposed co-plaintiff should proceed separately on individual claims. Rule 21 of the Federal 18 Rules of Civil Procedure provides that “[o]n motion or on its own, the court may at any time, on 19 just terms, add or drop a party…[or] sever any claim against a party.” Fed. R. Civ. P. 21. Courts 20 have broad discretion regarding severance. See Coleman v. Quaker Oats Co., 232 F.3d 1271 , 21 1297 (9th Cir. 2000); Maddox v. Cnty. of Sacramento, No. 2:06-cv-0072-GEB-EFB, 2006 WL 22 3201078, at *2 (E.D. Cal. Nov. 6, 2006). 23 Generally, an action brought by multiple plaintiffs proceeding pro se in which one or more 24 of the plaintiffs are in custody presents procedural problems that cause delay and confusion. 25 Delay can arise from the transfer of prisoners to other facilities or institutions, and the changes in 26 address that occur when prisoners are released from custody. Further, the need for all plaintiffs to 27 agree on all filings made in this action and the need for all filings to contain the original 1 Plaintiffs’ claims be severed. Plaintiff shall proceed as the sole plaintiff in this action; and new 2 actions shall be opened for the proposed plaintiffs: (1) Jeff Kile, (2) Kareem Lanier, (3) Christian 3 Navedo, (4) Michael Ridgeway, (5) Dominem Wilson. (6) James Papazian, (7) Ronnie Gonzalez, 4 (8) Jeremy Prewitt, (9) Billie Johnson, (10) Kayce White, (11) Aaron M. Carrion, and (12) 5 Matthew Higgins-Vogt. Each plaintiff shall be solely responsible for prosecuting his action and 6 will be provided a civil rights complaint form and an application to proceed in forma pauperis. 7 Plaintiff and the proposed plaintiffs are advised that a federal court must screen a 8 prisoner’s complaint that seeks relief against a governmental entity, officer, or employee. See 28 9 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has 10 raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief 11 may be granted, or that seek monetary relief from a defendant who is immune from such relief. 12 28 U.S.C. § 1915A(b)(1) & (2). “Notwithstanding any filing fee, or any portion thereof, that may 13 have been paid, the court shall dismiss the case at any time if the court determines that the action 14 or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915 (e)(2)(B)(ii). 15 A complaint is required to contain “a short and plain statement of the claim showing that 16 the pleader is entitled to relief.” Fed. R. Riv. P. 8(a)(2). Detailed factual allegations are not 17 required but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 18 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 19 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff's allegations are taken as 20 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., [21] 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state a 22 viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 23 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79 ; Moss v. U.S. Secret Service, 572 24 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions 25 are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. [26] Id. 27 Accordingly, the Court shall screen any amended complaint from Plaintiff detailing his 1 Plaintiff’s request for injunctive relief in abeyance pending the filing of his complaint and in 2 forma pauperis application. The Court shall deny Plaintiff’s request for order preventing 3 retaliation as retaliation is already prohibited. Because the Court has already addressed Plaintiff’s 4 filing, the request that this case be granted “expedited status” shall be denied. 5 Conclusion and Order 6 Based on the foregoing, IT IS HEREBY ORDERED that: 7 1. Plaintiff’s request that this case proceed as a class action (Doc. 1) is DENIED; 8 2. The claims of Plaintiff Michael Benanti are SEVERED from the claims of the ten 9 (10) remaining plaintiffs (all currently housed at USP Atwater): 10 i. Jeff Kile, 08806-030 11 ii. Kareem Lanier, 69000-054 12 iii. Christian Navedo, 36719-054 13 iv. Michael Ridgeway, 72873-067 14 v. Dominem Wilson, 87135-510 15 vi. James Papazian, 30410-047 16 vii. Ronnie Gonzalez, 41893-054 17 viii. Jeremy Prewitt, 22708-026 18 ix. Billie Johnson, 88324-509 19 x. Kayce White, 31988-171; 20 3. Plaintiff Michael Benanti shall proceed as the sole plaintiff in case number 1:2421 cv-01108-CDB; 22 4. The Clerk of the Court is directed to: 23 i. Open a separate civil action for each of the remaining ten (10) plaintiffs; 24 ii. Open a separate civil action for Aaron M. Carrion, 23020509 (see Doc. 5) 25 and Matthew Higgins-Vogt, 21996-026 (see Doc. 6); 26 iii. Randomly assign each new civil action to a Magistrate Judge according to 27 the Court’s usual assignment of civil cases; 1 Lanier, Navedo, Ridgeway, Wilson, Papazian, Gonzalez, Prewitt, Johnson, 2 White, Carrion, and Higgins- Vogt; 3 v. Send each of the 13 plaintiffs (including Plaintiff Benanti) a copy of the 4 complaint (Doc. 1), filed on September 18, 2024; bearing the case number 5 assigned to each plaintiff’s individual action; 6 vi. Send each of the 13 plaintiffs (including Plaintiff Benanti) a civil rights 7 complaint form; 8 vii. Send each of the 13 plaintiffs (including Plaintiff Benanti) an application to 9 proceed in forma pauperis; 10 5. Within 45 days from the date of service of this order, the 13 plaintiffs (including 11 Plaintiff Benanti) SHALL FILE a signed complaint bearing his own case number; 12 6. Within 45 days from the date of service of this order, the 13 plaintiffs (including 13 Plaintiff Benanti) each SHALL PAY the filing fee for his action, or complete and 14 submit an application to proceed in forma pauperis bearing his case number; and 15 7. Failure by a plaintiff to comply with this order may result in the dismissal of 16 the plaintiff’s case. 17 | IT IS SO ORDERED. 'S | Dated: _ October 3, 2024 | Narn D Pr 19 UNITED STATES MAGISTRATE JUDGE [28] Oo