The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff is a prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are plaintiff's motion for class certification (Doc. 38), motion for appointment of an expert witness (Doc. 41) and motion for leave to amend (Doc. 43). This action continues on claims involving inadequate dental care and violations of plaintiff's ability to practice his religion by not allowing him to conduct Buddhism study classes. These claims arose at Sacramento County Jail.
Motion for Class Certification
Plaintiff's motion seeks class certification for approximately 10 different unrelated claims. As stated above, this action is only proceeding on claims involving inadequate dental care and not allowing plaintiff to conduct Buddhism study classes. Several of the claims raised by plaintiff have previously been dismissed from this action.
The prerequisites to maintenance of a class action are: (1) the class is so numerous that joinder of all members is impracticable, (2) there are common questions of law and fact, (3) the representative party's claims or defenses are typical of the class claims or defenses, and (4) the representative party will fairly and adequately protect the class interests. See Fed. R. Civ. P. 23(a).
To the extent plaintiff seeks certification regarding the dental and Buddhism study classes, he has failed to meet the requirements of Fed. R. Civ. P. 23(a). Plaintiff has not even set forth any information concerning other individuals who received inadequate dental care or desired to participate in Buddhism study classes at Sacramento County Jail.
Moreover, a prisoner appearing pro se is not a fit class advocate, and may not act as counsel for other prisoners. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); see also C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (pro se litigant may not represent other litigants). In this case, plaintiff seeks to include class members in a binding court adjudication, and he would necessarily be representing them.
Plaintiff's motion should be denied.
Motion for Expert Witness
Plaintiff moves pursuant to Fed. R. Evid. 706 for an expert witness in dentistry. Federal Rule of Evidence 706 allows the Court to appoint expert witnesses on its own motion or on motion by a party. Fed. R. Evid. 706; Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Rule 706(a) does not authorize the district court to provide a plaintiff with funds for an expert witness or to appoint such a witness on a plaintiff's behalf; rather, it permits the appointment of an expert to aid the court. At this early stage in the proceedings, the appointment of an expert witness is unnecessary. Plaintiff's motion for appointment of an expert witness is denied.
Plaintiff filed the original complaint on July 21, 2009. That complaint was dismissed with leave to amend and plaintiff filed the operative first amended complaint on September 8, 2009. On October 30, 2009, the court dismissed several claims and defendants and ordered service on the County of Sacramento and Chaplain Ortiz for claims of inadequate dental care and violations of plaintiff's ability to practice his religion related to not being allowed to conduct Buddhism study classes. Defendants filed an answer on June 4, 2010.
The Federal Rules of Civil Procedure provide that a party may amend his or her pleading "once as a matter of course at any time before a responsive pleading is served." Fed. R. Civ. P. 15(a). However, as in the instant case, once an answer has been filed, a party may amend a pleading only by leave of court or by written consent of the adverse party. See Rule 15(a)(2). Although "[t]he court should freely give leave when justice so requires," under Rule 15(a)(2), and there is presumption in favor of granting leave to amend, such leave need not be granted where such amendment (1) would prejudice the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile. Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003), citing Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Amerisource Bergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). This circuit accords the greatest weight to "the consideration of prejudice to the opposing party," the prejudice-showing burden resting on the opposing party. Eminence Capital, 316 F.3d at 1052. "Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend ." Id. [emphasis in original].
Plaintiff's second amended complaint raises approximately 20 new federal and state claims and 6 new named defendants along with several John Doe defendants. Some of the claims include plaintiff's classification status, storage of his legal property, medical care for a lump on his head, the food does not meet dietary guidelines, the food is prepared in unsanitary conditions, he cannot eat with other groups of people, the ...