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Tyrone Rogers v. G.J. Giurbino

May 17, 2011

TYRONE ROGERS,
MICHAEL ANTHONY LOPEZ,
PLAINTIFFS,
v.
G.J. GIURBINO, URIBE DOMINGO, JR.; N. GRANNIS; M. HODGES; DENNIS BROWN;
ALICIA GARCIA; L. KASTNER; M. AYALA; B. NARVIS; D. FOSTON, DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

CDCR #CV-35389;

CDCR #H-30604

ORDER: (1) SEVERING CLAIMS AND PARTIES PURSUANT TO FED.R.CIV.P. 21; (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL [ECF No. 3]; (3) GRANTING PLAINTIFF ROGERS' MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 4], AND (4) DISMISSING ACTION PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A

Plaintiffs, both inmates currently incarcerated at the Centinela State Prison, and proceeding pro se, have filed a civil action pursuant to 42 U.S.C. § 1983. Plaintiffs have also have filed Motions to Proceed In Forma Pauperis ("IFP"), along with a Motion to Appoint Counsel.

I. FEDERAL RULE OF CIVIL PROCEDURE 21

As an initial matter, the Court notes that this action has been filed by two separate Plaintiffs who are currently incarcerated in the same institution. It is often the case during the course of litigation filed by those who are incarcerated, that a plaintiff will transfer to different institutions. If Plaintiffs were to be separated, which is a high probability, they would not be able to represent the interests of the other party. Because Plaintiffs are proceeding pro se, they have no authority to represent the legal interest of any other party. See Cato v. United States, 70 F.3d 1103, 1105 n.1 (9th Cir. 1995); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987); see also FED.R.CIV.P. 11(a) ("Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's original name, or if the party is not represented by an attorney, shall be signed by the party."). Thus, to attempt to litigate this action together in one action would lead to a great deal of procedural confusion and likely result in significant delays. Thus, the Court severs the claims brought by Plaintiff Lopez from this action pursuant to FED.R.CIV.P. 21.

The Court will permit Plaintiff Rogers to proceed in this action and directs the Clerk of Court to open a new action with the Complaint [ECF No. 1], along with Plaintiff Lopez's Motion to Proceed IFP [ECF No. 2].

II. MOTION TO PROCEED IFP [ECF No. 2]

All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

The Court finds that Plaintiff has no available funds from which to pay filing fees at this time. See 28 U.S.C. § 1915(b)(4). Therefore, the Court GRANTS Plaintiff's Motion to Proceed IFP [ECF No. 4] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fees mandated shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

III. INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1)

Notwithstanding IFP status or the payment of any partial filing fees, the Court must subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and order the sua sponte dismissal of any case it finds "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the ...


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