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Malone v. Ferguson

United States District Court, W.D. Washington, Tacoma

October 30, 2019

CALVIN MALONE, et al., Plaintiffs,
v.
ROBERT W. FERGUSON, et al., Defendants.

          REPORT AND RECOMMENDATION

          J. Richard Creatura United States Magistrate Judge

         The 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.

         Plaintiffs, 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.

         BACKGROUND

         Plaintiffs 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.

         After 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, at 3.

         After 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.

         DISCUSSION

         Plaintiffs 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.

         A class 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 lead plaintiffs.

         Second, 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.

         Although 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.

         The 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).

         Pursuant 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). ...


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