Chavez et al v. County of Santa Clara

Filing 119

ORDER by Judge Robert M. Illman denying 116 Motion for Civil Contempt; denying 117 Motion to Intervene. (rmilc2S, COURT STAFF) (Filed on 9/1/2021)

Case 1:15-cv-05277-RMI Document 119 Filed 09/01/21 Page 1 of 4

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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BRIAN CHAVEZ, et al.,

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Plaintiffs,

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United States District Court
Northern District of California

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Case No. 15-cv-05277-RMI
ORDER ON MOTIONS TO
INTERVENE AND CIVIL CONTEMPT

v.
COUNTY OF SANTA CLARA,

Re: Dkt. Nos. 116, 117

Defendant.

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Now pending before the court in this class action case are two motions filed pro se by Mr.

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Howard Herships – a Motion to Intervene (dkt. 117) and a Motion for Civil Contempt (dkt. 116).

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This case involves a certain class of Plaintiffs (persons who were, or will be, county jail inmates

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during certain time periods) and the County of Santa Clara regarding: the provision of

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constitutional medical, dental, and mental health care; the unnecessary or excessive use of force

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against jail inmates; the excessive use of solitary confinement; and discrimination against inmates

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with certain non-mobility disabilities. See Consent Decree (dkt. 109) at 1-2. The case was certified

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as a class action in September of 2016 (dkt. 34), the matter was settled in October of 2018 (dkt.

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73), the Consent Decree and Remedial Plan were entered in March of 2019 (dkt. 109), and the

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case was thereafter administratively closed (dkt. 110), while the court retained limited jurisdiction

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for a limited period of time for enforcement purposes. See Consent Decree (dkt. 109) at 7.

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BACKGROUND

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Mr. Herships claims that he was incarcerated at the Santa Clara County Jail from January

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of 2020 until March of 2020, and that during this period, he was denied access to his hearing aids

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and his diabetic medication prior to meal consumption. See Intervention Mot. (dkt. 117) at 6-7.

Case 1:15-cv-05277-RMI Document 119 Filed 09/01/21 Page 2 of 4

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Mr. Herships further contends that the County of Santa Clara is ignoring the Consent Decree and

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Remedial Plan by not providing class action notice inside the jails; he also contends (without

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much explanation) that class counsel should be removed from this case and replaced by a “referral

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to [the] Northern District Pro Bono Panel.” Id. at 6-8. Mr. Herships’ Motion purports to be

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brought on behalf of himself, as well as others in his situation (which he refers to as the other

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“absent class members.”). Id. at 8-11. Mr. Herships’ other motion seeks a finding of civil

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contempt against the County of Santa Clara for a litany of reasons including: the alleged denial of

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hearing aids and diabetes medication; an injury that Mr. Herships contends he suffered inside a

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vehicle operated by the jail during transport; and, the purported denial of certain notices to himself
and other “absent class members.” See Contempt Mot. (dkt. 116) at 3-5. Further, Mr. Herships

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United States District Court
Northern District of California

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expresses generalized dissatisfaction with class counsel by speculating that “the Prison Law Office

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agrees to allow the County of Santa Clara not to provide Notice . . . [so that they] do[] not have to

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monitor the (sic) take any calls or respond to the absent class members or take any enforcement

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action and they can simple (sic) get paid some $200,000 per year for doing nothing!” Id. at 5.

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Meanwhile, Mr. Herships has already presented all of these claims, among many others, in

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a parallel lawsuit that is now pending in this court before Judge Donato. See Herships v. Smith et

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al., Case No. 3:20-cv-07208-JB (Filed October 15, 2020). Mr. Herships’ Amended Complaint in

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Herships v. Smith et al., therefore, alleges about the lack of notice to himself and other “absent

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class members” in the Santa Clara County Jails, about being deprived of his hearing aids, about

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the episode wherein he claims he was injured in a jail transport van, and about being denied timely

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access to his diabetes medications. See Herships v. Smith et al., Case No. 3:20-cv-07208-JB,

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Amend. Compl. (dkt. 14) at 3-4, 13, 14, 31, 33.

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LEGAL STANDARD

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Under Fed. R. Civ. P. 24(a) a party must be granted leave to intervene when that party is

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given an unconditional right to do so by statute, or when that party claims an interest relating to

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the property or transaction that is the subject of the action, and is so situated that disposing of the

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action may as a practical matter would impair or impede the movant’s ability to protect its interest,

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unless existing parties adequately represent that interest. Alternatively, as for permissible
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intervention, the “court may permit anyone to intervene who . . . has a claim or defense that shares

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with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B) (emphasis

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added). District courts consider several factors in determining whether to grant permissive

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intervention, and are “given broad discretion to make this determination . . .” Perry v.

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Schwarzenegger, 630 F.3d 898, 905-06 (9th Cir. 2011) (citation omitted).

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DISCUSSION

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At the outset, the court should note the general rule that non-attorney litigants cannot

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appear pro se in class action cases because pro se litigants are not “adequate” class representatives

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under Federal Rule of Civil Procedure 23(a). See Simon v. Hartford Life, Inc., 546 F.3d 661, 66465 (9th Cir. 2008) (collecting cases); White v. Geren, 310 Fed. App’x 159, 160 (9th Cir. 2009);

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United States District Court
Northern District of California

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Bell v. Almager, 388 F. App’x 672, 673 (9th Cir. 2010). The exception to this general rule is when

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a statute authorizes the plaintiff to prosecute the action on behalf of others. Simon, 546 F.3d at 664

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n.6. However, that exception does not apply here, and Mr. Herships’ Motion clearly seeks to

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intervene and litigate on behalf of himself and other “absent class members.” It should also not go

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without mention that in prisoner cases, a pro se prisoner’s ability to bring class actions is even

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more limited. See, e.g., Abel v. Alameda Cnty., No. C 07-3247 MJJ (PR), 2007 U.S. Dist. LEXIS

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104014, 2007 WL 3022252, at *1 (N.D. Cal. Oct. 13, 2007) (“Pro se prisoner plaintiffs may not

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bring class actions. They are not qualified to act as class representatives as they are unable to fairly

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represent and adequately protect the interests of the class.”) (citations omitted).

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The court finds that Mr. Herships does not satisfy the criteria for either mandatory or

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permissive intervention. With respect to intervention as of right, acknowledging that Mr. Herships

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“claims an interest relating to the property or transaction that is the subject of the action,” he has

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failed to show that disposing of the action would, as a practical matter, impair or impede his

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ability to protect his interest. Fed. R. Civ. P. 24(a). This is so for two reasons: first, he has failed to

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show that his interest cannot be adequately protected by class counsel in this case; and second, the

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existence of his currently-pending parallel case (Herships v. Smith et al., Case No. 3:20-cv-07208-

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JB (Filed October 15, 2020)) through which he presents, inter alia, the same issues about which he

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complains in his Motion to Intervene (dkt. 117) makes it clear that the denial of his request to
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intervene in this case will have no effect at all on his ability to vindicate those same interests in his

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currently-pending parallel case. Nor has Mr. Herships indicated why class counsel, by whom he is

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already represented in this case, will be unable to protect his interests as a class member. Thus, for

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these reasons, Mr. Herships is not entitled to intervene as a matter of right.

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The Court also will not permit Mr. Herships to intervene as a discretionary matter. It is true

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that he “has a claim or defense that shares with the main action a common question of law or fact.”

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However, the Court must also consider several other factors to evaluate whether to grant

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permissive intervention. These factors include “whether the intervenor[’s] interests are adequately

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represented by other parties, whether intervention will prolong or unduly delay the litigation, and
whether parties seeking intervention will significantly contribute to full development of the

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United States District Court
Northern District of California

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underlying factual issues in the suit . . .” Perry, 630 F.3d at 905 (citation omitted).

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Here, the Court finds that Mr. Herships’ interests are adequately represented by other

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parties, that his inclusion in the action has the potential to prolong or unduly delay this litigation,

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and that Mr. Herships has not shown that his experience and knowledge exceeds that of the

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existing parties, potential experts, and other witnesses such that his intervention would

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“significantly contribute to full development of the underlying factual issues in the suit.” For all of

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these reasons, the court finds that Mr. Herships should not be permitted to intervene.
CONCLUSION

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Therefore, Mr. Herships’ Motion to Intervene (dkt. 117) is DENIED, and his Motion for
Civil Contempt (dkt. 116) is DENIED as moot.
IT IS SO ORDERED.
Dated: September 1, 2021

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ROBERT M. ILLMAN
United States Magistrate Judge

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