Claxton v. Ryan et al

Filing 1

ORDER severing case from case number CV-11-934-PHX-GMS-ECV. Signed by Judge G Murray Snow on 06/27/2011. (JRD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard William Claxton, et al.,

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Plaintiffs,

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vs.

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Charles L. Ryan, et al.,
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Defendants.
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No. CV 11-934-PHX-GMS (ECV)
ORDER

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On May 10, 2011, Plaintiffs Richard William Claxton, Ronald Dale Birdwell, Jimmy

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Mamoth, Wayne Prince, Jr., and Thomas James Killinger, who are confined in the Arizona

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State Prison Complex-Yuma, filed a pro se civil rights Complaint pursuant to 42 U.S.C.

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§ 1983 (Doc. 1). None of the Plaintiffs has filed an Application to Proceed In Forma

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Pauperis or paid the filing fee. The Court will sever the action into separate cases.

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The Court will also deny Plaintiffs’ Motion for Class Action Certification (Doc. 2),

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Motion to Appoint Expert Witness (Doc. 3), Motion to Appoint Counsel (Doc. 4), and

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Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 6).

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I.

Severance of Action into Separate Cases

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Generally, plaintiffs may join in one action if they assert any right to relief arising out

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of the same occurrence or series of occurrences and if any question of law or fact in common

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to all plaintiffs will arise in the action. Fed. R. Civ. P. 20. However, Rule 21 of the Federal

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Rules of Civil Procedure authorizes the Court, on just terms, to sever claims. See Desert

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Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1375 (9th Cir. 1980) (even if the specific

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requirements of Rule 20 may be satisfied, a trial court must examine other relevant factors

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to determine if joinder of a party will comport with principles of fundamental fairness).

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Even if Plaintiffs in this action are properly joined, the Court has found that

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management of pro se multi-plaintiff inmate litigation presents significant burdens to both

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the parties and the Court. Plaintiffs are inmates proceeding pro se, and, although each

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Plaintiff may appear on his own behalf, none may appear as an attorney for the other. Johns

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v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997). Therefore, during the

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prosecution of this action, each Plaintiff would be required to sign and submit his own

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motions and notices related to his claims in the action, and all Plaintiffs would be required

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to individually sign any motion or notice filed on behalf of all Plaintiffs. However, because

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of security concerns related to inmate correspondence and face-to-face communications,

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Plaintiffs would have, at best, very limited opportunities to discuss case strategy, share

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discovery, or even provide each other copies of the motions and notices they file with the

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Court. Accordingly, continued administration of the lawsuit by the inmates becomes

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virtually impossible due to the regulation of inmate-to-inmate correspondence. Moreover,

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inmates are subject to transfer to a different facility at any time or may be released.

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With these concerns in mind, the Court concludes that unitary adjudication of

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Plaintiffs’ claims would result in unfairness to Plaintiffs, Defendants, and the Court’s goals

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of achieving judicial economy and maintaining efficient control of the Court’s docket.

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Allowing each Plaintiff to proceed separately would overcome the unfairness created by

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these circumstances. Therefore, the Court will sever this action into five individual cases and

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a new case number will be assigned to each individual Plaintiff. A copy of the Complaint

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(Doc. 1) and this Order will be placed in each new case.

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The individual Plaintiffs must proceed independently from this point on and will not

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be regarded as co-plaintiffs, except upon further order of the Court. All further pleadings,

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motions or other papers submitted for filing by an individual Plaintiff in his separate case

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must be signed by the individual Plaintiff, or they will be stricken.

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II.

Motions

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A.

Class Certification

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Plaintiffs have filed a Motion for Class Certification. None of the Plaintiffs are

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attorneys. Although each Plaintiff may appear on his own behalf, he may not appear as an

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attorney for other persons in a class action. McShane v. United States, 366 F.2d 286, 288

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(9th Cir. 1966) (nonlawyer had no authority to appear as an attorney for other persons in a

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purported class action); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th

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Cir.1987) (while a non-attorney may represent himself, he has no authority to appear as an

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attorney for others); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (plain error

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to permit an inmate proceeding pro se to represent fellow inmates in a class action). “This

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rule is an outgrowth not only of the belief that a layman, untutored in the law, cannot

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‘adequately represent’ the interests of the members of the ‘class,’ but also out of the long-

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standing general prohibition against even attorneys acting as both class representative and

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counsel for the class.” Huddleston v. Duckworth, 97 F.R.D. 512, 514 (N.D. Ind. 1983).

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Further, Plaintiffs have not made a showing that the four prerequisites to a class action

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under Rule 23(a) of the Federal Rules of Civil Procedure i.e., numerosity, commonality,

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typicality, and adequacy of representation, have been met in this case. The Court will

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therefore deny the Motion for Class Certification.

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B.

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In their “Motion for Appointment of Expert Witness,” Plaintiffs request that the Court

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appoint an expert witness to evaluate scientific evidence on the health effects of toxic mold

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and the concentration levels of toxic mold in the Yuma-Cheyenne prison. Plaintiffs’ request

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is essentially a request for discovery and is therefore premature. Defendants have not yet

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been served or filed an answer and the Court therefore cannot evaluate discovery requests

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at this early juncture. The Court will deny the Motion without prejudice.

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...

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Expert Witness

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C.

Appointment of Counsel

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There is no constitutional right to the appointment of counsel in a civil case. See Ivey

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v. Board of Regents of the University of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In

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proceedings in forma pauperis, the court may request an attorney to represent any person

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unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C.

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§ 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to exceptional

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circumstances requires an evaluation of the likelihood of success on the merits as well as the

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ability of Plaintiff to articulate his claims pro se in light of the complexity of the legal issue

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involved. Id. “Neither of these factors is dispositive and both must be viewed together

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before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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Cir. 1986)).

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Having considered both elements, it does not appear at this time that exceptional

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circumstances are present that would require the appointment of counsel in this case.

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Plaintiffs are in no different position than many pro se prisoner litigants. The Court will

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therefore deny without prejudice Plaintiffs’ Motion for Appointment of Counsel.

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D.

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Temporary restraining orders are governed by Rule 65(b) of the Federal Rules of Civil

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Procedure. The mailing certificate on Plaintiffs’ motion for a temporary restraining order

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does not indicate that the motion was served on Defendants. As a result, Plaintiffs appear

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to seek a temporary restraining order without notice under Rule 65(b) of the Federal Rules

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of Civil Procedure. The Court may not grant a temporary restraining order without notice

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unless the applicant certifies to the court in writing the efforts, if any, which have been made

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to give notice and the reasons that notice should not be required. Fed. R. Civ.P. 65(b).

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Plaintiffs have not satisfied this requirement. No reason has been offered by Plaintiffs to

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forgo notice to the adverse party. Accordingly, Plaintiffs’ motion for a temporary restraining

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order will be denied.

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Motion for Temporary Restraining Order

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Even if Plaintiffs had met the procedural requirements for issuing a temporary

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restraining order, Plaintiffs have not demonstrated that injunctive relief is appropriate in this

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case. Whether to grant or deny a motion for a temporary restraining order is within the

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Court’s discretion. See Miss Universe, Inc. v. Flesher, 605 F.2d 1130, 1132-33 (9th Cir.

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1979). “The standard for issuing a temporary restraining order is identical to the standard

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for issuing a preliminary injunction.”

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Corporation/Young Bros., Ltd. Salaried Pension Plan, 27 F. Supp. 2d 1225, 1228 (D. Haw.

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1998). To obtain a preliminary injunction, the moving party must show “that he is likely to

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succeed on the merits, that he is likely to suffer irreparable harm in the absence of

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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

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the public interest.” Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374

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(2008).

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Environmental Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal.

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2000).

Whitman v. Hawaiian Tug & Barge

The moving party has the burden of proof on each element of the test.

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In this case, Plaintiffs have not made a specific request for injunctive relief. Plaintiffs

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state only that they are seeking an injunction, they have not specified precisely what they

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want the Court to prohibit Defendants from doing. Moreover, Plaintiffs’ claims for relief

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involve their conditions of confinement and long term exposure to overcrowded and

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unsanitary conditions. Plaintiffs have not demonstrated an immediate, irreparable harm as

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required to obtain injunctive relief. The Court will deny the Motion for Temporary

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Restraining Order and Preliminary Injunction.

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III.

Warnings

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A.

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Plaintiffs must file and serve a notice of a change of address in accordance with Rule

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83.3(d) of the Local Rules of Civil Procedure. Plaintiffs must not include a motion for other

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relief with a notice of change of address. Failure to comply may result in dismissal of their

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action.

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Address Changes

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B.

Copies

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Plaintiffs must submit an additional copy of every filing for use by the Court. See

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LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice

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to Plaintiff.

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IT IS ORDERED:

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(1)

Plaintiffs’ Motion for Class Certification (Doc. 2) is denied.

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(2)

Plaintiffs’ Motion to Appoint Expert Witness (Doc. 3) is denied.

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(3)

Plaintiffs’ Motion to Appoint Counsel (Doc. 4) is denied.

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(4)

Plaintiff’s Motion for Temporary Restraining Order an Preliminary Injunction

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(Doc. 6) is denied.
(5)

This action is severed into 5 individual actions, one for each of the Plaintiffs:

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Richard William Claxton, Ronald Dale Birdwell, Jimmy Mamoth, Wayne Prince, Jr., and

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Thomas James Killinger. The Clerk of Court must assign a new case number to each new

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individual action.

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(6)

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in each new case.

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(7)

The Clerk of Court must file a copy of the Complaint (Doc. 1) and this Order

The individual Plaintiffs must proceed separately from this point forward and

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will not be regarded as co-plaintiffs, except upon further order of the Court. All further

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pleadings, motions or other papers submitted for filing by an individual Plaintiff in his

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separate case must be signed by the individual Plaintiff, or they will be stricken.

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(8)

This action is dismissed without prejudice.

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(9)

The Clerk of Court must close this case and enter judgment accordingly.

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DATED this 27th day of June, 2011.

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