(PC)Mitchell v. Cueva

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 GREGORY D. MITCHELL, Jr., No. 2:21-cv-1475-KJM-EFB P 12 Plaintiff, 13 v. ORDER 14 DANIEL E. CUEVA, Warden, 15 Defendant. [16] 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983.1 He has filed an application to proceed in forma pauperis. ECF No. 2. 19 Application to Proceed In Forma Pauperis 20 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915 (a)(1) and (2). 21 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 22 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 23 § 1915(b)(1) and (2). 24 ///// 25 1 The first few pages of plaintiff’s original filing consist of a pre-printed form petition for 26 writ of habeas corpus under 28 U.S.C. § 2254 . ECF No. 1 at 1-6. On page three, however, plaintiff makes clear that his intention is to file a civil rights lawsuit and not a habeas action. See [27] id. at 3 . (“habeas [is] the wrong vehicle, this injunction for suit is proper vehicle which has jurisdiction over this civil rights violation”). In 17-page typed attachment, plaintiff states that he 28 is filing a “complaint” pursuant to “42 U.S.C. § 1983.” Id. at 7. 1 Screening Standards 2 Federal courts must engage in a preliminary screening of cases in which prisoners seek 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 7 relief.” Id. § 1915A(b). 8 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 9 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 10 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 11 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 13 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 14 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 15 U.S. 662 , 679 (2009). 16 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 17 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 18 action.” Twombly, 550 U.S. at 555-557 . In other words, “[t]hreadbare recitals of the elements of 19 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 20 678. 21 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 22 Twombly, 550 U.S. at 570 . “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 25 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 26 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 27 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 28 ///// 1 Screening Order 2 Plaintiff purports to bring a class action on behalf of himself and other inmates sentenced 3 to life without the possibility of parole for crimes committed when they were between the ages of 4 18 to 25. See ECF No. 1 at 7-9. He claims that California Penal Code § 3051(h) is being 5 unconstitutionally applied to them in violation of their rights to due process and equal protection, 6 and to be free from cruel and unusual punishment.2 Id. at 15-22. 7 Plaintiff is proceeding pro se in this action and therefore cannot bring an action on behalf 8 of his fellow inmates. Pro se litigants have no authority to represent anyone other than 9 themselves; therefore, they lack the representative capacity to file motions and other documents 10 on behalf of prisoners. See Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) 11 (“[A] non-lawyer ‘has no authority to appear as an attorney for others than himself,’”) (quoting 12 C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987)); see also Simon v. 13 Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (non-attorney plaintiff may not attempt to 14 pursue claim on behalf of others in a representative capacity). “Although a non-attorney may 15 appear in propria person in his behalf, that privilege is personal to him.” C.E. Pope Equity Trust, [16] 818 F.2d at 697 . Further, it is well-established that a layperson cannot “fairly and adequately 17 protect the interests of the class,” as required by Rule 23(a)(4) of the Federal Rules of Civil 18 Procedure. See Martin v. Middendorf, 420 F. Supp. 779 (D.D.C. 1976); McShane v. United 19 States, 366 F.2d 286 (9th Cir. 1966); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). 20 Accordingly, plaintiff’s complaint is dismissed with leave to amend. 21 Leave to Amend 22 Plaintiff is cautioned that any amended complaint must identify as a defendant only 23 persons who personally participated in a substantial way in depriving him of his constitutional 24 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 25 ///// [26] 2 Section 3051 mandates parole hearings for youth offenders who were under age 25 at the 27 time of their commitment offenses. Section 3051(h), however, excludes cases in which “an individual is sentenced to life in prison without the possibility of parole for a controlling offense 28 that was committed after the person had attained 18 years of age.” 1 | deprivation of a constitutional right if he does an act, participates in another’s act or omits to 2 || perform an act he is legally required to do that causes the alleged deprivation). 3 The amended complaint must also contain a caption including the names of all defendants. 4 | Fed. R. Civ. P. 10(a). 5 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 6 || George, 507 F.3d at 607. Nor, as he was warned above, may he bring multiple, unrelated claims 7 || against more than one defendant. /d. 8 Any amended complaint should be as concise as possible in fulfilling the above 9 || requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 10 || background which has no bearing on his legal claims. He should also take pains to ensure that his 11 || amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 12 | and organization. Plaintiff should carefully consider whether each of the defendants he names 13 || actually had involvement in the constitutional violations he alleges. A “‘scattershot” approach in 14 | which plaintiff names dozens of defendants will not be looked upon favorably by the court. 15 Conclusion 16 Accordingly, it is ORDERED that: 17 1. Plaintiffs application to proceed in forma pauperis (ECF No. 2) is GRANTED; 18 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 19 || mn accordance with the notice to the California Department of Corrections and Rehabilitation filed 20 || concurrently herewith; 21 3. Plaintiffs complaint (ECF No. 1) is DISMISSED with leave to amend within 30 days 22 | from the date of service of this order; and 23 4. Failure to comply with any part of this this order may result in dismissal of this 24 || action. 25 || DATED: October 20, 2021. Eg Vuln 4 Z is LH At 26 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE