Martinez v. Peters et al

Filing 58

Order. The Court AFFIRMS Magistrate Judge Papak's Order 9 denying Plaintiff's Motion 3 for Class Certification. Signed on 10/07/2013 by Judge Anna J. Brown.See attached 4 page Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LEONEL O. MARTINEZ,
Plaintiff,
v.
COLETTE S. PETERS, Director
of O.D.O.C.; JEFF PREMO,
Superintendent, O.S.P.;
M. YODER, Asst. Superintendent
of Security O.S.P.; S.T.M.
LT. YANCEY; S.T.M. LT. UFFORD;
and STEVE FRANKE, Superintendent,
T.R.C.I., et. al.,
Defendants.

LEONEL O. MARTINEZ
#16800291
Oregon State Penitentiary
2605 State Street
Salem, OR 97310-0505
Plaintiff, Pro Se
ELLEN F. ROSENBLUM
1 - ORDER

6:13-CV-00384-PK
ORDER

Attorney General
ANDREW D. HALLMAN
Assistant Attorney General
Oregon Department of Justice
1162 Court Street N.E.
Salem, OR 97301
Attorneys for Defendants

BROWN, Judge.
On March 22, 2013, Magistrate Judge Paul Papak issued an
Order (#9) denying Plaintiff Leonel O. Martinez's Motion (#4) for
Appointment of Counsel, Plaintiff's Motion (#3) for Class
Certification, and Plaintiff's Motion (#5) for Waiver of the U.S.
Marshal Service Fees.

On May 29, 2013, Plaintiff filed a Motion

for Review of United State Magistrate's Order, which the Court
construes as Objections to that portion of the Magistrate Judge's
Order denying Plaintiff's Motion for Class Certification.

The

matter is now before this Court pursuant to Federal Rule of Civil
Procedure 72(a).
In accordance with Rule 72(a), "[w]hen a pretrial matter not
dispositive of a party's claim or defense is referred to a
magistrate judge to hear and decide, the magistrate judge must
promptly conduct the required proceedings and, when appropriate,
issue a written order stating the decision."

The standard of

review for an order with objections is "clearly erroneous" or
"contrary to law."

See also 28 U.S.C. § 636(b)(1)(A)(applying

the "clearly erroneous or contrary to law" standard of review for
2 - ORDER

nondispositive motions).

If a ruling on a motion is not

determinative of "a party's claim or defense," it is not
dispositive and, therefore, is not subject to de novo review as
are proposed findings and recommendations for dispositive motions
under Title 28 U.S.C. § 636(b)(1)(B).
This Court has carefully considered the Objections of
Plaintiff and concludes they do not provide a basis to modify the
Magistrate Judge's Order.

As the Magistrate Judge noted

Plaintiff may not act as counsel for other persons in a class
action because Plaintiff is not an attorney.

See, e.g., Maloney

v. Ryan, No. CV 13–00314–PHX–RCB (BSB), 2013 WL 3945921, at *11
(D. Ariz. July 31, 2013)("Plaintiff Maloney is not an attorney;
he is appearing pro se in this action.

Accordingly, although

[p]laintiff may appear on his own behalf, he may not appear as an
attorney for other persons in a class action."); Chapa v. Arpaio,
No. CV 12–2482–PHX–DGC (DKD), 2013 WL 474367, at *6 (D. Ariz.
Feb. 7, 2013)(same); Johns v. County of San Diego, 114 F.3d 874,
876 (9th Cir. 1997)(“While a non-attorney may appear pro se on
his own behalf, he has no authority to appear as an attorney for
others than himself."); McShane v. United States, 366 F.2d 286,
288 (9th Cir. 1966)(nonlawyer did not have any authority to
appear as an attorney for other persons in a purported class
action); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.
1975)(it was plain error to permit an inmate proceeding pro se to
3 - ORDER

represent fellow inmates in a class action).
In addition, this Court has reviewed the pertinent portions
of the record de novo and does not find any error in the
Magistrate Judge's conclusion that Plaintiff has not met the
prerequisites to a class action under Federal Rule of Civil
Procedure 23(a)(numerosity, typicality, commonality, and adequacy
of representation).

CONCLUSION
The Court AFFIRMS Magistrate Judge Papak's Order (#9)
denying Plaintiff's Motion (#3) for Class Certification.
IT IS SO ORDERED.
DATED this 7th day of October, 2013.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

4 - ORDER