Espinoza v. Harell et al

Filing 2

ORDER to Cure Defects by Magistrate Judge Gregory J. Fouratt. Cure Defects by 1/19/2017. (jlr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

JUSTIN L. ESPINOZA, et al.,

Plaintiffs,
v.

Civ. No. 16-1369 LH/GJF

TOM HARELL, et al.,
Defendants.

ORDER TO CURE DEFICIENCIES
THIS MATTER is before the Court, sua sponte. On December 16, 2016, Plaintiffs Justin
L. Espinoza and Paul A. Matamoros, proceeding pro se, submitted a Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983. [Doc. 1] Plaintiffs, who are prisoners incarcerated at the San Juan
County Adult Detention Center, contend that they are being deprived of their “1st Amendment
right to freely and openly practice [their] chosen religion” of Judaism. [Doc. 1] The Court
determines that Plaintiffs’ filing is deficient because the complaint is not signed personally by both
named plaintiffs and the $400.00 fee has not been paid nor, alternatively, have Plaintiffs each
submitted an individual application to proceed in District Court Without Prepaying Fees or Costs
pursuant to 28 U.S.C. § 1915. Plaintiffs must cure these deficiencies within thirty (30) days of the
date of this order.
It is well established that “[a] litigant may bring his own claims to federal court without
counsel, but not the claims of others.” Fymbo v. State Farm Fire and Cas. Co., 213 F.3d 1320,
1321 (10th Cir. 2000). “This is so because the competence of a layman is clearly too limited to
allow him to risk the rights others.”

Id. (internal quotation marks and citation omitted).

Therefore, this case will be treated as a multi-plaintiff civil rights action and “[e]very pleading,
written motion, and other paper must be signed” by each “party personally if the party is
unrepresented.” Fed. R. Civ. P. 11(a). Indeed, “[t]he court must strike an unsigned paper unless
the omission is promptly corrected after being called to the . . . party’s attention.” Id.
Although the civil rights complaint was signed by Plaintiff Espinoza, it was not signed by
Plaintiff Matamoros. [Doc. 1] If Plaintiff Matamoros wishes to proceed in this civil rights
action, an amended complaint must be submitted that is signed personally by each named
Plaintiff.

Failure to submit a civil rights complaint signed personally both by Plaintiff Espinoza

and Plaintiff Matamoros, within thirty (30) days of the date of this order, may result in the
dismissal of Mr. Matamoros’s claims without further notice.
The fee for this civil rights action is $400.00. 1 Plaintiffs have not paid the $400.00 fee, nor
have they each submitted an application to proceed in District Court Without Prepaying Fees or
Costs pursuant to 28 U.S.C. § 1915. Each Plaintiff must qualify for in forma pauperis (IFP)
status individually. Thus, Plaintiffs Espinoza and Matamoros must each file their own signed
application to proceed in District Court Without Prepaying Fees or Costs pursuant to 28 U.S.C. §
1915, which includes a financial certificate and a certified copy of the individual Plaintiff’s inmate
account statement for the six-month period immediately preceding the filing of the complaint.
See 28 U.S.C. § 1915(a)(2) (“A prisoner seeking to bring a civil action or appeal a judgment in a

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The $400.00 fee is comprised of a $350.00 filing fee and a $50.00 administrative fee. See 28 U.S.C. § 1914. “The
Prison Litigation Reform Act (PLRA) ‘does not specify how fees are to be assessed when multiple prisoners constitute
the plaintiffs or appellants.’” Woodruff v. Wyoming, 49 F. App’x 199, 203 n.1 (10th Cir. 2002) (quoting In re Prison
Litigation Reform Act, 105 F.3d 1131, 1137 (6th Cir. 1997)) (unpublished). The Tenth Circuit Court of Appeals has
not yet decided “whether the PLRA permits multi-plaintiff actions or requires full payment of the filing fee from each
inmate in the case of a jointly-filed” action. Id.; Compare Hubbard v. Haley, 262 F.3d 1194, 1197-98 (11th Cir.
2001) (holding that “the PLRA requires that each prisoner proceeding IFP pay the full filing fee”), with In re Prison
Litigation Reform Act, 105 F.3d at 1137-38 (holding that “each prisoner should be proportionally liable for any fees or
costs that may be assessed”). The Court need not resolve this issue at this time.

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civil action or proceeding without prepayment of fees or security therefor, in addition to filing the
affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account statement
(or institutional equivalent) for the prisoner for the 6-month period immediately preceding the
filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at
which the prisoner is or was confined.”). The Court will not review the merits of Plaintiffs’ civil
rights complaint unless Plaintiffs comply with this order and the requirements of 28 U.S.C. § 1915.
Failure to cure the designed deficiencies within thirty (30) days from the date of this
order may result in the dismissal of this action without further notice. All subsequent
pleadings or filings must include the civil action number (No. CV 16-01369-LH-GJF) of this case
and, with the exception of individual IFP motions, must be signed personally by both named
Plaintiffs.
IT IS THEREFORE ORDERED that Plaintiffs cure the deficiencies designated above
within thirty (30) days from the date of this Order;
IT IS FURTHER ORDERED that the Clerk of the Court is directed to send to Plaintiffs a
form § 1983 complaint, with instructions;
IT IS FURTHER ORDERED that the Clerk of the Court is directed to send to each named
Plaintiff, together with a copy of this Order, 2 copies each of an Application to Proceed in District
Court Without Prepaying Fees or Costs.
IT IS SO ORDERED.

______________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
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