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Thomas Hightower v. James Tilton

September 29, 2011

THOMAS HIGHTOWER,
PLAINTIFF,
v.
JAMES TILTON, ET AL., DEFENDANT.



The opinion of the court was delivered by: Marsha J. Pechman United States District Judge

ORDER ON DEFENDANTS' MOTION TO DISMISS

The Court, having received and reviewed:

1. Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss (Dkt. No. 69)

2. Plaintiff's Opposition to Defendants' Motion to Dismiss (Dkt. No. 73)

3. Defendants' Reply to Opposition to Defendants' Motion to Dismiss (Dkt. No. 74) and all attached declarations and exhibits, makes the following ruling:

IT IS ORDERED that the motion is GRANTED; Plaintiff's First Amended Complaint is DISMISSED with leave to amend.

IT IS FURTHER ORDERED that Plaintiff's counsel shall file an amended complaint within 21 days of the entry of this order.

Background

Defendants have previously moved to dismiss Plaintiff's original complaint -- this Court granted that motion in part, dismissing several Defendants without prejudice and granting Plaintiff leave to amend the complaint. Dkt. No. 48. Plaintiff then filed his First Amended Complaint ("FAC"; Dkt. No. 50) as a pro se, and thereafter filed a motion requesting appointment of counsel. Dkt. No. 52. That motion was granted (Dkt. No. 60) and Plaintiff has been represented by counsel since January of this year.

Discussion/Analysis

Defendants allege two grounds for dismissal. The Court will discuss and analyze each ground separately.

1. Class action

Defendants characterize the flaw in Plaintiff's FAC as "fail[ure] to state a class action claim" (Memo in Support, p. 2), but a close reading of their motion reveals that they are actually arguing that Plaintiff, as a pro se prisoner, does not have standing to bring a class action lawsuit. The argument has merit -- there is a wealth of case law holding that pro se plaintiffs cannot represent anyone but themselves in their lawsuits (Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008), and specifically that pro se prisoners may not bring class actions on behalf of other inmates. Smith v. Schwarzenegger, 393 Fed.Appx. 518 (9th Cir. 2010), citing McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966).

Plaintiff nevertheless challenges this argument. First, he contends that an FRCP 12(b)(6) motion is not the proper procedural tool to test Defendants' allegation that he has failed to state a class action claim -- that can properly be done only at the class certification stage. In support of this position, he cites Gillibeau v. City of Richmond, 417 F.2d 426 (9th Cir. 1969). But Gillibeau is inapposite in that the defendants in that case actually were attacking the sufficiency of the class action pleadings. Id. at 432. Defendants here are not really challenging the sufficiency of the ...


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