Roundtree v. Maricopa County Special Health District Board of Directors

          REPORT AND RECOMMENDATION

          Honorable Deborah M. Fine United States Magistrate Judge

         TO THE HONORABLE STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:

         This matter is before the Court on its own review. After the filing of a Complaint (Doc. 1), all Plaintiffs consented to proceeding before a United States Magistrate Judge (Doc. 8). Initially, Plaintiff Sheila Roundtree was the only plaintiff who filed an Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2). There were further filings thereafter, including by Plaintiff Sheila Roundtree who is not an attorney but was trying to appear on behalf of herself and other plaintiffs (see Doc. 15).

         On October 7, 2019, this Court issued an Order which addressed the impropriety of a non-attorney appearing for other parties in this action:

It appears that the motion (Doc. 15) was prepared by Plaintiff Sheila Roundtree, see return address on first page of motion indicating “in propria persona” (Id.). It does not appear that Sheila Roundtree is a lawyer. Although a nonattorney may appear in propria persona in his own behalf, that privilege is personal to him. McShane v. United States, 366 F.2d 286, 288 (9^th Cir. 1966). “He has no authority to appear as an attorney for others than himself.” Id. See also C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9^th Cir. 1987). Section 1654, 28 U.S.C., provides that in federal court, “parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.” Significant is the language contained in the statute that limits the authorization of civil litigants to “plead and conduct their own cases personally.” (emphasis added). Courts have routinely adhered to the general rule prohibiting plaintiffs appearing in propria persona from pursuing claims on behalf of others in a representative capacity. Any further filings will only be considered as to each Plaintiff who signed the filing.

(Doc. 16 at 1-2). The same Order addressed proceeding without prepaying costs and fees; the Court wrote:

On August 27, 2019, this Court denied without prejudice the application to proceed without prepaying costs and fees filed solely by Plaintiff Sheila Roundtree because the affidavit sought waiver of the filing fee for all the named Plaintiffs (Doc. 10). No. applications to proceed without prepaying costs and fees have been filed by any other Plaintiff besides Plaintiff Sheila Roundtree. In the motion to extend time for service, Plaintiffs state that the filing fee will be paid by October 23, 2019 (Doc. 15). Thus, the filing fee must be paid in full or applications to proceed without prepaying costs and fees by each Plaintiff seeking to proceed with the Complaint or First Amended Complaint must be filed by October 23, 2019. The case will be dismissed as to any Plaintiff not found to be entitled to proceed without the prepayment of costs and fees if the filing fee is not paid in full by October 23, 2019. For purposes of such, the Court will consider, as to Plaintiff Sheila M. Roundtree, the application already filed at Doc. 2, from which the Court intends to find that Plaintiff qualifies for proceeding without the prepayment of costs and fees.

(Doc. 16 at 2).

         On October 22, 2019, a First Amended Complaint signed by Sheila Roundtree and Sean Roundtree was filed (Doc. 17). Sean Roundtree also filed an Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 18). Given the Plaintiffs' consents to proceed before a United States Magistrate Judge (Doc. 8), undersigned has authority to rule on the Applications to Proceed in the District Court Without Prepaying Fees or Costs (Docs. 2, 18), and has granted such applications (Doc. 21). Without consents to proceed before a United States Magistrate Judge by all the defendants, undersigned lacks authority to screen the First Amended Complaint with the issuance of an order, and will instead proceed by report and recommendation herein. See Williams v. King, 875 F.3d 500 (9^thCir. 2017).

         I. Screening/Review Pursuant to § 1915

         Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Marks v. Solcum, 98 F.3d 494, 495 (9^th Cir. 1996). See also Lopez v. Smith, 203 F.3d 1122, 1126 fn. 7 (9^th Cir. 2000) (28 U.S.C. § 1915(e) “applies to all in forma pauperis complaints, ” not merely those filed by prisoners). Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 8(a)(2) provides that a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint that lacks such statement fails to state a claim and must be dismissed.

         In determining whether a plaintiff fails to state a claim, the court assumes that all factual allegations in the complaint are true. Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9^th Cir. 1995). However, “the tenet that a court must accept a complaint's allegations as true is inapplicable to legal conclusions [and] mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The pertinent question is whether the factual allegations, assumed to be true, “state a claim to relief that is plausible on its face.” Id. (citing Twombly, 550 U.S. at 570).

         Where a complaint contains the factual elements of a cause, but those elements are scattered throughout the complaint without any meaningful organization, the complaint does not set forth a “short and plain statement of the claim” for purposes of Rule 8, Federal Rules of Civil Procedure. Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9^th Cir. 1988). Further, a complaint may be dismissed where it lacks a cognizable legal theory, lacks sufficient facts alleged under a cognizable legal theory, or contains allegations disclosing some absolute defense or bar to recovery. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9^th Cir. 1988); Weisbuch v. County of L.A., 119 F.3d 778, 783, fn. 1 (9^th Cir. 1997).

         To survive dismissal, a complaint must give each defendant “fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). In the absence of fair notice, a defendant “should not be required to expend legal resources to guess which claims are asserted against her or to defend all claims ‘just in case.'” ...