Rockwell v. Tuolumne County, California et al

Filing 55

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Erica P. Grosjean on July 29, 2022, recommending as follows: That all claims brought on behalf of minor G.A.R. be dismissed without prejudice. These findings and recommendations will be submitt ed to the United States district judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections w ith the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parti es are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALLAN THOMAS ROCKWELL,

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Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT CLAIMS
BROUGHT ON BEHALF OF MINOR
PLAINTIFF G.A.R. BE DISMISSED

TUOLUMNE COUNTY, et al.,
(ECF Nos. 5, 8)

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Defendants.
FOURTEEN (14) DAY DEADLINE

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Case No. 1:22-cv-00392-JLT-EPG

Plaintiff Allan Thomas Rockwell (“Plaintiff”) is proceeding pro se in this action against

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Tuolumne County, Michael Choate, Denise Choate, and Melissa Brouhard. (See ECF Nos. 1, 5.)

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For the following reasons, the Court recommends that all claims brought on behalf of minor

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G.A.R. be dismissed without prejudice.

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I.

BACKGROUND

Plaintiff initially filed the complaint on April 4, 2022. (ECF No. 1.) On April 25, 2022,
Plaintiff filed a First Amended Complaint indicating that the action is brought by Plaintiff and by
G.A.R., a minor, proceeding pro se. (ECF No. 5.) On May 4, 2022, the Court issued an order for
Plaintiff to show cause why G.A.R.’s claims should not be dismissed without prejudice because

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Plaintiff has no authority to proceed on his behalf. (ECF No. 8.)
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On May 17, 2022, Plaintiff filed a response to the May 4, 2022 order to show cause, along
with a motion for an extension of time to file a further response. (ECF Nos. 14, 15.) Plaintiff’s
response explained that he was searching for counsel for G.A.R. and himself. (ECF No. 14.) And
he stated that if he could not obtain counsel, “he will use FRCP 17 Next Friend rule to obtain

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proper representation to enter an appearance for G.A.R.” (Id.)

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On May 18, 2022, the Court granted Plaintiff an extension to June 30, 2022, to file a

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further response to the order to show cause. (ECF No. 17). However, the Court reiterated the

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discussion in the order to show cause—that G.A.R. must be represented by counsel if this action

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is to proceed on his or her behalf. (Id. at 2); see Garcia v. City of Fresno, 2017 WL 6383814, at

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*4 (E.D. Cal. Dec. 14, 2017) (“It is established that a non-attorney parent must be represented by
counsel in bringing an action on behalf of the child.”).
On May 31, 2022, Defendants Michael Choate and Denise Choate each filed objections to
minor G.A.R. proceeding pro se through Plaintiff in this case. (ECF Nos. 20, 21.)
On June 29, 2022, Plaintiff filed a motion requesting that the Court grant him permission

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to represent minor G.A.R. or grant him an extension of time to respond to the order to show
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cause and filings from Defendants objecting to him representing G.A.R. (ECF No. 35.) The Court
again reiterated that Plaintiff cannot pursue a claim on behalf minor G.A.R. absent counsel and
would not permit Plaintiff proceed pro se and pursue a claim on behalf of G.A.R., nor would the

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Court grant Plaintiff an extension to file a reply to Defendants’ objections to him pursuing a claim

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on behalf of G.A.R. (ECF No. 38.) However, the Court granted Plaintiff an extension of time

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until July 21, 2022 to respond to the order to show cause. (Id.) On July 12, 2022, Defendants

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Michael Choate and Denise Choate filed further objections to Plaintiff representing minor G.A.R.

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(ECF Nos. 41, 42.)

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Plaintiff has not filed any further response to the Court’s order to show cause and the time

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to do so has expired. Thus, for the reasons discussed below, the Court will recommend that minor

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G.A.R.’s claims be dismissed without prejudice.

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II.

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The Ninth Circuit has determined that although a non-attorney may appear pro se in his or

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DISCUSSION

her own behalf, that privilege is personal to them and they have no authority to appear as an
attorney for others than themselves. C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697
(9th Cir. 1987); Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008). “[A] parent or
guardian cannot bring an action on behalf of a minor child without retaining a lawyer.” Johns v.
County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997); see also Wilson v. Raye, 2020 WL

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1492662, at *2 (E.D. Cal. Mar. 27, 2020) (finding that a pro se plaintiff could not bring an action

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on behalf of a minor); Giorgis v. Fetter, , 2014 WL 12694301, at *1 (D. Ariz. Dec. 22, 2014)

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(accord).

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The First Amended Complaint states that it brings claims on behalf of G.A.R., a minor.
(ECF No. 5.) However, Plaintiff is proceeding pro se and counsel has not appeared on G.A.R.’s
behalf. As the Court has repeatedly explained to Plaintiff, G.A.R. is a minor and must be
represented by counsel if this action is to proceed on his or her behalf. Plaintiff, a non-attorney
proceeding pro se, does not have authority to appear on behalf of others, including G.A.R.
Further, the Court has provided Plaintiff ample opportunity to secure counsel for G.A.R. and
there has been no attorney appearance entered on G.A.R.’s behalf. Thus, the Court recommends
that G.A.R.’s claims be dismissed without prejudice.
III.

CONCLUSION AND RECOMMENDATION

In light of the foregoing, IT IS HEREBY RECOMMENDED that all claims brought on
behalf of minor G.A.R. be dismissed without prejudice.
These findings and recommendations will be submitted to the United States district judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen

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(14) days after being served with these findings and recommendations, any party may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Any reply to the objections shall be served and filed within

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fourteen (14) days after service of the objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
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Dated:

July 29, 2022

/s/
UNITED STATES MAGISTRATE JUDGE

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