United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
Richard Creatura United States Magistrate Judge
District Court has referred this matter filed under 42 U.S.C.
§ 1983 to the undersigned, as authorized by 28 U.S.C.
§§ 636(b)(1)(A) and (B) and Local Magistrate Judge
Rules MJR 1, MJR 3, and MJR 4. See Dkt. 9. This case
is before the Court on plaintiffs' class action complaint
and motion for class action status.
five civil detainees housed at the Special Commitment Center
(“SCC”), request to proceed with this matter as a
class action lawsuit. Because plaintiffs are pro se,
they cannot bring this matter as a class action, and the
undersigned recommends that their motion for class
certification be denied without prejudice, that claims
brought on behalf of any detainees other than the five named
plaintiffs be dismissed without prejudice, and that
plaintiffs be permitted to proceed with this matter on behalf
of themselves, only.
initiated this matter in June 2019 by filing a proposed class
action complaint and five applications to proceed in
forma pauperis (“IFP”). See Dkts.
1, 3-7. In their complaint, plaintiffs seek to bring claims
on behalf of themselves and other civil detainees at the SCC.
See Dkt. 11, at 4. They bring suit against the
Washington State Attorney General, the SCC's CEO, and the
secretary of the state agency that operates the SCC.
See Dkt. 11, at 4. They allege that defendants rely
upon civil detainees' labor to operate the SCC and that
beginning in 2008, defendants reduced SCC residents' wage
to an amount well below the minimum wage and also failed to
provide appropriate working gear. See Dkt. 11, at 5,
7. On the basis of these allegations, plaintiffs bring claims
for violations of their constitutional rights,
Washington's minimum wage law, and the Fair Labor
Standards Act and a claim of unjust enrichment. See
Dkt. 11, at 10-15, 19.
reviewing the IFP applications and proposed complaint, the
undersigned directed plaintiffs to show cause
“regarding whether they each qualify to proceed IFP and
whether they request the appointment of counsel on their
behalf.” Dkt. 10, at 2. Specifically, the undersigned
informed plaintiffs that because they were pro se
and therefore could not bring a class action lawsuit, they
had to either obtain counsel at their own expense or obtain a
court order appointing counsel to represent them.
See Dkt. 10, at 3. The undersigned gave plaintiffs
until September 27, 2019, to show cause regarding their
requests to proceed IFP and whether they sought the
appointment of counsel on their behalf. See Dkt. 10,
the Court entered the show cause order, plaintiffs paid the
filing fee and the Clerk's office docketed
plaintiff's class action complaint and motion requesting
class action status. See Dkts. 11, 12.
request that this matter be certified as a class action under
Federal Rule of Civil Procedure 23. See Dkt. 12. The
undersigned recommends denying the request.
action lawsuit cannot proceed with pro se lead
plaintiffs. First, the privilege to proceed pro se
does not allow one to appear as an attorney for others.
See McShane v. United States, 366 F.2d 286, 288 (9th
Cir. 1966). Because plaintiffs are pro se, they
would be representing others, in addition to themselves as
a pro se lead plaintiff cannot fairly and adequately
protect the interest of the class, as required for class
certification under the Federal Rules of Civil Procedure.
See Oxendine v. Williams, 509 F.2d 1405, 1407 (4th
Cir. 1975); Fed.R.Civ.P. 23(a)(4). This prevents plaintiffs
from proceeding with this matter as a class action.
the undersigned offered plaintiffs an opportunity to move for
the appointment of pro bono counsel and to explain
why they believe that the exceptional circumstances necessary
to justify the appointment of counsel exist in this case,
plaintiffs have chosen not to do so. See Dkt.
Therefore, the undersigned recommends that the Court deny
plaintiffs' motion for class certification without
prejudice. See Dkt. 12.
undersigned recommends that plaintiffs be allowed to join
together to bring this litigation. Although the Court has
discretion to sua sponte correct a misjoinder of
parties, here, plaintiffs' claims raise common questions
of law and fact and therefore plaintiffs appropriately join
together in this action. See Fed. R. Civ. P.
20(a)(1). However, plaintiffs should be aware that each
plaintiff must individually sign each pleading, other than a
declaration or affidavit, so that plaintiffs do not engage in
the unauthorized practice of law by signing any other
pleading on each others' behalf. Further, because each of
the five plaintiffs is a “party, ” documents such
as pleadings and motions must be served on each plaintiff, in
addition to any other parties in this matter. See
Fed. R. Civ. P. 5(a)(1).
to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the
parties shall have fourteen (14) days from service of this
Report to file written objections. See also Fed. R.
Civ. P. 6. Failure to file objections will result in a waiver
of those objections for purposes of de novo review
by the district judge (see 28 U.S.C. §
636(b)(1)(C)) and can result in a result in a waiver of those
objections for purposes of appeal. See Thomas v.
Arn, 474 U.S. 140 (1985); Miranda v. Anchondo,
684 F.3d 844, 848 (9th Cir. 2012) (citations omitted).