(PC) Fowler v. Jones et al

Filing 8

ORDER signed by Magistrate Judge Deborah Barnes on 2/7/2020 DENYING 6 Motion to Appoint Counsel; SEVERING the claim of Plaintiff Hunter from the Claim of Plaintiff Fowler; ORDERING Plaintiff Hunter to proceed as the sole plaintiff in case No. 2:19 -cv-2340; ORDERING Clerk to open a separate civil action for Plaintiff Fowler assigned to Magistrate Judge Deborah Barnes, file and docket a copy of this order in the file opened for Plaintiff Fowler, strike Fowlers name from the caption of Hunter s complaint and strike Hunters name from the caption in Fowlers complaint; and send each plaintiff an endorsed copy of the complaint bearing the amended caption and the case number assigned to his own individual action; DISMISSING each Plaintiff& #039;s complaint; ORDERING Clerk to send each Plaintiff a new civil rights action form and new IFP application; and GRANTING each Plaintiff 30 days from the date of service of this order to file an amended complaint with a new IFP application, using the forms provided by the court with this order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID SAMPSON HUNTER, et al.,

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No. 2:19-cv-2340 DB P

Plaintiff,
v.

ORDER

SCOTT JONES, et al.,
Defendants.

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Plaintiffs, David Sampson Hunter and DeAndre Fowler, are county jail inmates
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proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiffs have
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presented several unrelated claims in this action. For the reasons set forth below, the court will
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dismiss the complaint and direct each plaintiff to file an amended complaint.
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The complaint filed in this action is brought and signed by both plaintiffs. (See ECF No.
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1 at 6.) Plaintiff Hunter states that he is bringing this action “for his client,” plaintiff Fowler. (Id.
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at 3.) As an initial matter, the plaintiffs are informed that Hunter cannot bring an action on behalf
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of his fellow inmate because he is proceeding in pro se in this action. Pro se litigants have no
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authority to represent anyone other than themselves; therefore, they lack the representative
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capacity to file motions and other documents on behalf of prisoners. See Johns v. County of San
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Diego, 114 F.3d 874, 877 (9th Cir. 1997) (“[A] non-lawyer ‘has no authority to appear as an
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attorney for others than himself,’” (quoting C.E. Pope Equity Trust v. United States, 818 F.2d
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696, 697 (9th Cir. 1987)); see also Simon v .Hartford Life, Inc, 546 F.3d 661, 664 (9th Cir. 2008)

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(non-attorney plaintiff may not attempt to pursue claim on behalf of others in a representative

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capacity). “Although a non-attorney may appear in propia person in his behalf, that privilege is

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personal to him.” Id. (citations omitted). Because Hunter may not pursue a claim on behalf of

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Fowler, the court will deny the motion to appoint counsel (ECF No. 6) filed by Hunter on behalf

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of Fowler.

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Additionally, the court will require each plaintiff to proceed separately with their claims.

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The Federal Rules of Civil Procedure provide “[p]arties may be dropped or added by order of the

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court on motion of any party or of its own initiative at any stage of the action and on such terms

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as are just. Any claim against a party may be severed and proceeded with separately.” Fed. R.

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Civ. P. 21. Courts have broad discretion regarding severance. See Davis v. Mason County, 927

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F.2d 1473, 1479 (9th Cir. 1991).

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Generally, “Rule 20(a) of the Federal Rules of Civil Procedure permits the joinder of

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plaintiffs in one action if: (1) the plaintiffs assert any right to relief arising out of the same

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transaction, occurrence, or series of transactions or occurrences; and (2) there are common

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questions of law or fact. If the test for permissive joinder is not satisfied, a court, in its discretion,

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may sever the misjoined parties, so long as no substantial right will be prejudiced by the

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severance.” Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997) (internal citations omitted);

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see Fed. R. Civ. P. 21 (“Misjoinder of parties is not a ground for dismissing an action. On motion

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or on its own, the court may at any time, on just terms, add or drop a party. The court may also

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sever any claim against a party.”). Fowler has alleged a claim regarding racial discrimination and

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Hunter has alleged a claim regarding mail fraud. Thus, the claims do not appear to have any

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common questions of fact or law.

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Moreover, an action brought by multiple prisoners in pro se presents “unique problems

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not presented by ordinary civil litigation.” Heilman v. Thumeser, 2011 WL 5508891 at *1 (E.D.

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Cal. Nov. 9, 2011); see also Mizerak v. Kendricks, 2008 WL 4809866 (E.D. Cal. Nov. 3, 2008)

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(“[A]n action brought by multiple inmate plaintiffs proceeding pro se presents procedural

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problems that cause delay and confusion.”). This action could be delayed if one of the plaintiffs
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were to be transferred or released on parole, and there are inherent difficulties when inmates

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attempt to communicate with each other and with unincarcerated individuals.

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Neither plaintiff has filed an application to proceed in forma pauperis or paid the filing

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fee. However, the court notes that in a number of other cases have determined that the filing fee

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provisions in the Prison Litigation Reform Act of 1995 (“PLRA”) suggests that prisoners may not

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bring multi-plaintiff actions, but rather must each proceed separately. See Heilman, 2011 WL

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5508891 at *2; Surrell v. Gilliard, No. 2:19-cv-0261 EFB P, 2019 WL 916766 at *1 (E.D. Cal.

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Feb. 25, 2019); Treglia v. Kernan, No. C 12-2522 LHK (PR), 2013 WL 1502157 at *1 (N.D. Cal.

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Apr. 11, 2013); Pinson v. Frisk, No. 13-cv-5502 VC, 2015 WL 738253 at *6 (N.D. Cal. Feb. 20,

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2015).
In order to avoid problems related to case-management and filing fees and because the

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claims appear unrelated, the court will order that plaintiffs’ claims be severed. Plaintiff Hunter

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will proceed in this action, while Fowler will proceed in a separate civil action to be opened by

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the Clerk of the Court. Each plaintiff will proceed in his own action and will be solely

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responsible for his own action.
The Clerk of the Court will be directed to assign the new action to the undersigned. The

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Clerk of the Court shall make appropriate adjustment in the assignment of civil cases to

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compensate for this reassignment.
Each plaintiff will be given thirty days to file, in his own action, an amended complaint

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and either pay the filing fee or submit an application for leave to proceed in forma pauperis, using

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the forms provided by the court with this order. Each plaintiff is cautioned that in order to

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proceed with their individual actions they will be liable for payment of the $350.00 filing fee.

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See 28 U.S.C. § 1915(b).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The motion to appoint counsel (ECF No. 6) is denied without prejudice.

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2. The claim of plaintiff Hunter is severed from the claim of plaintiff Fowler.

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3. Plaintiff Hunter shall proceed as the sole plaintiff in case No. 2:19-cv-2340.

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4. The Clerk of the Court is directed to:

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a. Open a separate civil action for plaintiff Fowler;

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b. Assign the action to the undersigned and make appropriate adjustment in the

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assignment of civil cases to compensate for such assignment;

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c. File and docket a copy of this order in the file opened for plaintiff Fowler;

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d. Place a copy of the complaint filed November 18, 2019, in the file opened for

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plaintiff Fowler

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e. Strike Fowler’s name from the caption of Hunter’s complaint and strike Hunter’s

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name from the caption in Fowler’s complaint; and

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f. Send each plaintiff an endorsed copy of the complaint bearing the amended

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caption and the case number assigned to his own individual action.

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5. Each plaintiff’s complaint is dismissed.

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6. The Clerk of the Court is directed to send each plaintiff a new form for filing a civil

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rights action under 42 U.S.C. § 1983 and a new Application to Proceed In Forma

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Pauperis By a Prisoner.

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7. Each plaintiff is granted thirty days from the date of service of this order to file an

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amended complaint and a new application to proceed in forma pauperis, using the

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forms provided by the court with this order. Each plaintiff’s document must bear the

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docket number assigned to his own individual case and each complaint must be

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labeled “Amended Complaint.” Each plaintiff must file an original and two copies of

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his amended complaint. Failure to file an amended complaint or a new application to

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proceed in forma pauperis in accordance with this order will result in a

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recommendation that the plaintiff’s action be dismissed.

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Dated: February 7, 2020

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DB:12

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DB:1/Orders/Prisoner/Civil.Rights/hunt2340.sever.31

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