Avery et al v. United States Attorney General et al

Filing 24

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/18/2015 ORDERING the Clerk to send Mr. Avery the form complaint and application for leave to proceed ifp used by this court; within 30 days, Mr. Avery shall either pay the $400.00 filing f ee or submit a complete application to proceed ifp; and within 30 days, Mr. Avery shall submit a complaint stating the nature of the action and his belief that he is entitled to redress. Failure to comply may result in a recommendation of dismissal of this matter. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN AVERY,

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No. 2:15-cv-0252-MCE-EFB P

Plaintiff,
v.

ORDER

UNITED STATES ATTORNEY
GENERAL, et al.,
Defendants.

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Steven Avery is a federal inmate proceeding without counsel. He has filed what he styles

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as a “motion for . . . stay, injunction, and restraining order.” He has also filed a motion for

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discovery, a motion for judgment as a matter of law, an affidavit regarding racial segregation, a

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civil cover sheet, an application to proceed in forma pauperis, a document titled “amendments to

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above stated case,” a second motion for judgment as a matter of law, and a second document

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purporting to “amend” earlier filed documents. ECF Nos. 1, 2, 3, 4, 8, 9, 19, 20, 21, 22. He has

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not, however, filed a complaint. Accordingly, he has not properly commenced a civil action.

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A complaint is necessary for the commencement of a civil action. Fed. R. Civ. P. 3. A

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complaint must contain a short and plain statement of the plaintiff’s claim, showing that he is

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entitled to relief. Fed. R. Civ. P. 8. It must also contain a caption including the names of all

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defendants. Fed. R. Civ. P. 10(a). Mr. Avery may draft his claims on the form complaint used by

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this court.
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In addition, Mr. Avery has requested leave to proceed in forma pauperis but has not

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submitted a certified trust account statement. Section 1915(a)(2) requires “a prisoner seeking to

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bring a civil action without prepayment of fees or security therefor, in addition to filing the

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affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account

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statement (or institutional equivalent) for the prisoner for the 6-month period immediately

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preceding the filing of the complaint . . . , obtained from the appropriate official of each prison at

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which the prisoner is or was confined.” Mr. Avery may comply with this requirement by having

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prison officials complete the “Certificate” portion of the form application for leave to proceed in

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forma pauperis.

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Lastly, the court notes that in his filings, Mr. Avery purports to be acting as “lead counsel”

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in a “class action.” There is no indication that Mr. Avery is an attorney licensed to practice law

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and Mr. Avery may not proceed with this case as a class action. It is well-established that a

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layperson cannot ordinarily represent the interests of a class. See McShane v. United States, 366

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F.2d 286 (9th Cir. 1966). This rule becomes nearly absolute when, as here, the putative class

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representative is incarcerated and proceeding pro se. Oxendine v. Williams, 509 F.2d 1405, 1407

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(4th Cir. 1975). Mr. Avery cannot “fairly and adequately protect the interests of the class,” as

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required by Rule 23(a)(4) of the Federal Rules of Civil Procedure. See Martin v. Middendorf, 420

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F. Supp. 779 (D.D.C. 1976).

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Until Mr. Avery submits a complaint and either pays the filing fee or meets the
requirements of 28 U.S.C. § 1915(a), there simply is no case before the court.

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Accordingly, it hereby is ORDERED that:

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1. The Clerk of the Court shall send to Mr. Avery the form complaint and application for

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leave to proceed in forma pauperis used in this court;

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2. Within 30 days of the date of this order, Mr. Avery shall either pay the $400 filing fee

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or submit a complete application for leave to proceed in forma pauperis; and

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3. Within 30 days of the date of this order, Mr. Avery shall submit a complaint stating the

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nature of the action and his belief that he is entitled to redress. Failure to comply with this order

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may result in a recommendation of dismissal of the matter currently designated as case number

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2:15-cv-0252-MCE-EFB P.

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DATED: May 18, 2015.

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