Cooley v. City of Vallejo

Filing 7

ORDER signed by Magistrate Judge Dale A. Drozd on 4/17/2014 GRANTING 6 Motion for Reconsideration; DENYING the plaintiff's request that Frederick Marc Cooley be allowed to continue to provide legal assistance during the course of this litigati on and that the court order service of the 1 Complaint; DIRECTING the Clerk of Court to issue process and to send the plaintiff an instruction sheet for service of process by the U.S. Marshal, three USM-285 forms, one summons form and an endorsed c opy of the 5 First Amended Complaint; ORDERING the plaintiff to submit to the U.S. Marshal in person or by mail within thirty (30) days, properly completed USM-285 forms, a properly completed summons form and the number of copies of the 5 First A mended Complaint required by the U.S. Marshal; ORDERING the plaintiff to file a declaration stating the date which the required documents were submitted to the U.S. Marshal within ten (10) days of said submission; DIRECTING the U.S. Marshal to serve process on the defendants without prepayment of costs within thirty (30) days of reception of the necessary materials from the plaintiff. (cc: U.S. Marshal) (Michel, G)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

FREDERICK MARCELES COOLEY,

12
13
14
15

No. 2:14-cv-0240 MCE DAD PS

Plaintiff,
v.

ORDER

CITY OF VALLEJO, et al.,
Defendants.

16
17
18
19

Plaintiff is proceeding in this action pro se. This matter was, therefore, referred to the
undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
In an order dated April 2, 2014, the undersigned granted plaintiff‟s application to proceed

20

in forma pauperis, dismissed plaintiff‟s complaint filed January 27, 2014, and granted plaintiff

21

leave to file an amended complaint within twenty-eight days. (Dkt. No. 4.) That order also

22

advised plaintiff that his request for authorization for “Frederick Marc Cooley” to act as

23

plaintiff‟s “legal assistant in this civil action” could not be granted.

24

On April 7, 2014, plaintiff filed a first amended complaint, (Dkt. No. 5), and a motion for

25

reconsideration of the court‟s April 2, 2014 order. (Dkt. No. 6.) Plaintiff‟s motion for

26

reconsideration asks the court to reconsider “its prior order dismissing [p]laintiff‟s complaint and

27

issue a new order recognizing [p]laintiff and his „Legal Assistant‟ Frederick Marc Cooley are

28

engaging in „expressive association‟ protected by [the] First Amendment,” and finding that
1

1

Frederick Marc Cooley “can continue to provide legal assistance to [p]laintiff during the course

2

of this litigation.” (Id. at 5.) Attached to plaintiff‟s motion for reconsideration is a declaration

3

from Frederick Marc Cooley, (“Marc Cooley”), stating that he is plaintiff‟s father and that he

4

“currently provide[s] legal assistance to” five other identified plaintiffs who have brought similar

5

actions against the City of Vallejo and officers of the Vallejo Police Department.1 (Id. at 7-11.)

6

According to Mr. Marc Cooley, this legal assistance “consists of but is not limited to researching

7

case law, rules of court etc. . . . preparing and filing court documents, preparing legal

8

correspondence, assisting in the discovery process . . . assisting during conferences between

9

parties and the court . . . and assisting during any trial or hearing set by the court.” (Id. at 8.)
In refusing to explicitly authorize and recognize Marc Cooley as plaintiff‟s legal assistant,

10
11

the court did not prohibit plaintiff from receiving informal assistance from his father in

12

prosecuting this action. Indeed, some of the assistance indicated by Marc Cooley may be

13

permissible, although the court is not ruling on the propriety or value of such informal assistance.

14

However, as previously stated, the right to represent oneself pro se is personal to the

15

plaintiff and does not extend to other parties. Simon v. Hartford Life, Inc., 546 F.3d 661, 664

16

(9th Cir. 2008); see also Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962) (“A litigant

17

appearing in propria persona has no authority to represent anyone other than himself.”).

18

Moreover, a non-attorney “has no authority to appear as an attorney for others than himself.”

19

C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir. 1987). Individuals who are

20

representing themselves in this court may not delegate the litigation of their claims to any other

21

individual. Local Rule 183(a).

22
23

Accordingly, if plaintiff wishes to prosecute this action it must be plaintiff who represents
himself before this court, unless licensed counsel substitutes in on his behalf. In this regard, all

24
1

25
26
27
28

While there is no indication before the court that plaintiff Frederick Marceles Cooley is a
minor, Frederick Marceles Cooley and his father Frederick Marc Cooley are advised that “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). Moreover, where the plaintiff
is a minor, the action cannot proceed without the appointment of a guardian ad litem. See FED. R.
CIV. PRO. 17(c); see also Watson v. County of Santa Clara, 468 F. Supp.2d 1150, 1155 (N.D. Cal.
2007); E.D. Cal. Local Rule 202.
2

1

pleadings and non-evidentiary documents filed with the court must be signed by plaintiff himself.

2

Moreover, plaintiff must appear at all noticed hearings and neither a non-attorney nor an attorney

3

who has not made a formal appearance in this action will be allowed to speak on plaintiff‟s

4

behalf. Finally, the court cannot and will not expressly authorize Marc Cooley, or any other non-

5

attorney, to act as plaintiff‟s legal assistant.
With respect to plaintiff‟s request that the court reconsider its prior order dismissing

6
7

plaintiff‟s complaint, as noted above, plaintiff has now filed an amended complaint. The

8

amended complaint has superseded the original complaint and the court‟s review of the amended

9

complaint finds that it is appropriate for service.
Accordingly, for the reasons stated above, the court will grant plaintiff‟s motion for

10
11

reconsideration. However, having reconsidered the matter, the court reaffirms its prior order

12

declining to expressly authorize Marc Cooley to act as plaintiff‟s legal assistant and dismissing

13

plaintiff‟s original complaint with leave to amend.

14

CONCLUSION

15

IT IS HEREBY ORDERED that:

16

1. Plaintiff‟s April 7, 2014 motion for reconsideration (Dkt. No. 6) is granted.

17

2. Plaintiff‟s request that the court find that Frederick Marc Cooley can continue

18

to provide legal assistance to the plaintiff during the course of this litigation and that the court

19

order service of the original complaint is denied for the reasons stated above.

20

3. The Clerk of the Court is directed to issue process and to send plaintiff an

21

instruction sheet for service of process by the United States Marshal, three USM-285 forms, one

22

summons form, and an endorsed copy of plaintiff‟s amended complaint filed April 7, 2014. (Dkt.

23

No. 5).

24

4. Within thirty (30) days after this order is served, plaintiff shall submit to the

25

United States Marshal a properly completed USM-285 form, a properly completed summons

26

form, and the number of copies of the endorsed complaint and of this order required by the

27

United States Marshal; the required documents shall be submitted directly to the United States

28

Marshal either by personal delivery or by mail to: United States Marshals Service, 501 I Street,
3

1
2

Suite 5600, Sacramento, CA 95814 (tel. [phone]).
5. Within ten (10) days after submitting the required materials to the United States

3

Marshals Service, plaintiff shall file with this court a declaration stating the date on which he

4

submitted the required documents to the United States Marshal. Failure to file the declaration in a

5

timely manner may result in an order imposing appropriate sanctions.

6
7
8
9
10

6. Within thirty (30) days after receiving the necessary materials from plaintiff,
the United States Marshal is directed to serve process on defendants without prepayment of costs.
7. The Clerk of the Court is directed to serve a copy of this order on the United
States Marshal.
Dated: April 17, 2014

11
12
13

DAD:6
Ddad1\orders.pro se\cooley0240.recon.den.serve.ord.docx

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4