Daniels v. Sherman

Filing 22

ORDER DENYING 20 Motion Class Certification and Appointment of Interim Class Counsel, signed by Magistrate Judge Erica P. Grosjean on 1/15/19. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NORMAN GERALD DANIELS, III,
Plaintiff,

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v.
STU SHERMAN,

Case No. 1:16-cv-01313-EPG (PC)
ORDER DENYING MOTION FOR CLASS
CERTIFICATION AND APPOINTMENT OF
INTERIM CLASS COUNSEL
(ECF No. 20)

Defendant.

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Norman Gerald Daniels, III (“Plaintiff”), a state prisoner proceeding pro se and in

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forma pauperis, commenced this action by filing a Complaint against Stu Sherman

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(“Defendant”), Warden of California Substance Abuse Treatment Facility and State Prison,

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Corcoran (“SATF”), on September 6, 2016. (ECF No. 1). Plaintiff alleged that Defendant

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declined to make certain accommodations to improve the accessibility of the computers in the

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law library at SATF.

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On March 20, 2017, this Court found that the allegations in this action were

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substantially similar to those in the case Daniels v. Allison, Case No. 1:12-cv-00545-LJO-GSA,

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which was dismissed with prejudice on February 21, 2014, and dismissed this action as barred

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by the doctrine of res judicata. (ECF No. 18). The Court entered judgment on the same day.

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(ECF No. 19).

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On December 17, 2018, Plaintiff filed a “Motion to Submit Multiple Requests for Class
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Certification.” (ECF No. 20). The motion is now before the Court.

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Plaintiff requests that the Court merge his cases into a class action and seeks the

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appointment of an interim class counsel. Id. Plaintiff states that he has filed numerous

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discrimination lawsuits alleging that the computer equipment available to visually impaired

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prisoners is inadequate. (ECF No. 21). Regarding the instant action, Plaintiff states that “[t]his

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case is currently in limbo as the ‘ACCESS TO Court case is being merged with this case, and it

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seems that the Trial court is holding until the issues of the ‘ACCESS TO Court’ case is

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resolved.” Id. at 5. Plaintiff further states that the Armstrong Remedial Plan1 is not complete

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and the Prison Law Office, class counsel in Armstrong, is not accomplishing the intent of the

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Remedial Plan.

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The motion for class certification and appointment of an interim class counsel is denied.

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The Court dismissed this action and entered final judgment on March 20, 2017. (ECF No. 19).

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Plaintiff, however, has not move for relief from the judgment. Under Federal Rule of Civil

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Procedure 60, a court may relieve a party from a final judgment for the following reasons: “(1)

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mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with

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reasonable diligence, could not have been discovered in time to move for a new trial under

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Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or

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misconduct by an opposing party; (4) the judgment is void; or (6) any other reason that justifies

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relief.” Plaintiff does not assert that any of the circumstances described in Rule 60(b) apply to

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this case. Plaintiff’s only argument in support of the instant motion is that he wishes to

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consolidate this action with other cases,2 and wishes to convert this action into a class action

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lawsuit. This is an insufficient basis for relief from the judgment.

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The Armstrong Remedial Plan refers to a remedial order issued in a class action suit against the California
Department of Corrections and Rehabilitation to enjoin practices that discriminated against disabled inmates in
California prisons. Armstrong v. Brown, No. 94-2307 CW (ECF No. 1974) (Order filed January 13, 2012).
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Plaintiff refers to the following cases in his moving papers: Daniels v. Allison, No. 1:12-cv-00545-LJO-GSA (E.
D. Cal. Deb, 21, 2014) (action dismissed with prejudice for failure to state a claim); Daniels v. Tolson, No. 1:13cv-00202-AWI-SAB (E. D. Cal. No. 16, 2017) (summary judgment awarded to defendants), appeal docketed, No.
17-17421 (9th Cir. Dec. 1, 2017); Daniels v. Sherman, No. 1:16-cv-01312-LJO-EPG (E. D. Cal. Jun. 20, 2018)
(action dismissed as barred by the doctrine of res judicata), appeal docketed, No. 18-16262 (9th Cir. July 10, 2018);
Daniels v. Sherman, No. 1:18-cv-01420-AWI-BAM (E. D. Cal. 2018) (pending); Daniels v. Sherman, No. 1:18cv-01499-EPG (E. D. Cal. 2018) (pending).

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Furthermore, Plaintiff cannot establish an exceptional circumstance warranting the

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appointment of counsel to represent him in his individual capacity. Pro se litigants do not have

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a constitutional right to appointed counsel in civil actions, Rand v. Rowland, 113 F.3d 1520,

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1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 (9th Cir. 1998), and

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the Court cannot require an attorney to represent a pro se litigant 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 U.S.

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296, 298 (1989). However, in certain exceptional circumstances the Court may request the

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voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. In

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determining whether “exceptional circumstances exist, a 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 pro

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

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citation omitted). Here, this action has already been dismissed on the merits, and Plaintiff was

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able to articulate his claims pro se in light of the complexity of the legal issues involved.

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Moreover, pro se plaintiffs may not pursue claims on behalf of others in a

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representative capacity. See Local Rule 183 (“Any individual who is representing himself or

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herself without an attorney must appear personally or by courtesy appearance by an attorney

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admitted to the Bar of this Court and may not delegate that duty to any other individual,

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including husband or wife, or any other party on the same side appearing without an

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attorney.”); see also Simon v. Hartford Life, Inc., 546 F.3d 661, 664–65 (9th Cir.2008); Russell

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v. United States, 308 F.2d 78, 79 (9th Cir.1962) (“A litigant appearing in propria persona has

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no authority to represent anyone other than himself.”); Hallford v. California Correctional

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Peace Officers Ass'n, 2007 WL 3046047, *5 (E.D. Cal. October 18, 2007) (stating that a pro se

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plaintiff cannot fairly and adequately protect the interests of a class as required by Rule

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23(a)(4) of the Federal Rules of Civil Procedure); see e.g. Perondi v. Schriro, No. CV06-2833-

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PHX-ROS, 2007 WL 1232168, at *4 (D. Ariz. Apr. 25, 2007), aff'd, 370 F. App'x 805 (9th Cir.

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2010) (“The undersigned recognizes that this matter presents a “chicken and the egg” problem.

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If Plaintiff is not appointed counsel, and he remains pro se, then his claims may not be certified

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as a class action. Conversely, unless Plaintiff's request for class certification is granted, he
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cannot show the type of complexity of legal issues which would justify appointment of counsel.

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Because the undersigned has concluded that Plaintiff is not entitled to appointed counsel in his

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own right, the Court must also conclude that Plaintiff does not meet the prerequisites for

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certification of a class action.”).

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Accordingly, Plaintiff’s motion for class certification and appointment of an interim
class counsel is denied.

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IT IS SO ORDERED.
Dated:

January 15, 2019

/s/
UNITED STATES MAGISTRATE JUDGE

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