Hernandez v. Olmos et al

Filing 12

ORDER signed by Magistrate Judge Gerald B. Cohn on 10/14/2011 denying 11 MOTION requesting the Court to make cases a class-action and denying MOTION to APPOINT COUNSEL. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NESTOR DANIEL HERNANDEZ,

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CASE NO.

1:11-cv-01495-LJO-GBC (PC)

Plaintiff,

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v.

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ORDER DENYING MOTION

OLMOS, et al.,
(ECF No. 11)

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Defendants.
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ORDER

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Plaintiff Nestor Daniel Hernandez (“Plaintiff”) is a state prisoner proceeding pro se

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and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed

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this action on September 7, 2011. (ECF No. 1.) Plaintiff’s Complaint has not yet been

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screened by the Court.

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Pending before the Court now is Plaintiff’s Motion filed October 12, 2011. (ECF No.
11.) In it, Plaintiff requests that the Court consolidate several similar cases, making a

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class-action, and appoint counsel. (Id.)

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After reviewing the Complaints, the Court has determined that each plaintiff should

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proceed separately on his own claims. Rule 21 of the Federal Rules of Civil Procedure

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provides that “[p]arties may be dropped or added by order of the court on motion of any

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party or of its own initiative at any stage of the action and on such terms as are just,” and

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“[a]ny claim against a party may be severed and proceeded with separately.”

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Here, Plaintiff is not an attorney and he is proceeding without counsel. A pro se

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litigant simply cannot “fairly and adequately protect the interests of the class.” Fed. R. Civ.

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P. 23(a)(4); Fymbo v. State Farm Fire & Casualty Co., 213 F.3d 1320, 1321 (2000). While

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a non-attorney proceeding pro se may bring his own claims to court, he may not represent

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others. E.g., Simon v. Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir. 2008); Fymbo,

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213 F.3d at 1321; Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997); C. E.

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Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987).

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Furthermore, in the Court’s experience, an action brought by multiple plaintiffs

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proceeding pro se in which one or more of the plaintiffs are incarcerated presents

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procedural problems that cause delay and confusion. Delay often arises from the frequent

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transfer of inmates to other facilities or institutions, the changes in address that occur when

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inmates are released on parole, and the difficulties faced by inmates who attempt to

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communicate with each other and other unincarcerated individuals. Further, the need for
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all plaintiffs to agree on all filings made in one action, and the need for all filings to contain

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the original signatures of all plaintiffs will lead to delay and confusion. Therefore, Plaintiff’s

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request for consolidation and class action status is denied.

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As to Plaintiff’s request for counsel, since the Court is not granting class action
status, appointment of counsel is unnecessary. Plaintiff does not have a constitutional

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right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.
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1997), and the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C.

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§ 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490

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U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989).

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However, in certain exceptional

circumstances the court may request the voluntary assistance of counsel pursuant to

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section 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will

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seek volunteer counsel only in the most serious and exceptional cases. In determining

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whether “exceptional circumstances exist, the district court must evaluate both the

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likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims

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pro se in light of the complexity of the legal issues involved.” Id. (internal quotation marks

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and citations omitted).

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In the present case, the Court does not find the required exceptional circumstances.

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Even if it is assumed that Plaintiff is not well versed in the law and that he has made

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serious allegations which, if proved, would entitle him to relief, his case is not exceptional.

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This Court is faced with similar cases almost daily. Further, at this early stage in the

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proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on

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the merits, and based on a review of the record in this case, the court does not find that
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Plaintiff cannot adequately articulate his claims. Therefore, Plaintiff’s motion for the
appointment of counsel is denied without prejudice.

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Accordingly, Plaintiff’s Motion is DENIED.
IT IS SO ORDERED.

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Dated:
1j0bbc

October 14, 2011
UNITED STATES MAGISTRATE JUDGE