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Schwartzmiller v. Brown

United States District Court, Ninth Circuit

June 28, 2013

EDMUND G. BROWN, JR., et al., Defendants. CDCR #F-67490 Plaintiffs,


WILLIAM Q. HAYES, District Judge.

I. Procedural History

On April 9, 2013, Dean Schwartzmiller, a state inmate currently incarcerated at the Richard J. Donovan Correctional Facility ("RJD"), and proceeding in pro se, filed this action in the Northern District of California on behalf of himself and purportedly on behalf of four other inmates. (ECF No.1.) Plaintiff Schwartzmiller is the only named Plaintiff to file a Motion to Proceed In Forma Pauperis ("IFP) which was granted by United States District Judge Richard Seeborg on May 7, 2013. (ECF No.5.) In addition, District Judge Seeborg dismissed the entire action on the grounds that Plaintiff was attempting to intervene in the Plata matter and instructed Plaintiff to file a motion to intervene in that matter. (ECF No.6.) On May 23, 2013, Plaintiff Schwartzmiller filed a "Motion to Alter Judgment" to clarify that the Plaintiffs did not seek intervention in the Plata matter because they were seeking money damages. (ECF No.8.) District Judge Seeborg granted Plaintiff's Motion and transferred this matter to the Southern District of California on May 28, 2013. (ECF No.9.)

After the matter was transferred to this Court, Plaintiff Schwartzmiller filed a Motion for Preliminary Injunction. (ECF No. 12.)


As an initial matter, Plaintiff Schwartzmiller purports to also bring this action on behalf of himself and inmates Ballinger, Cates, Gasper and Rodgers. However, because Plaintiff Schwartzmiller is proceeding pro se, he has 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. II(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."). Here, only Plaintiff Schwartzmiller has filed a Motion to Proceed IFP. Accordingly, the Court DISMISSES Plaintiffs Ballinger, Cates, Gasper and Rodgers from this action. However, this dismissal is without prejudice to Plaintiffs Ballinger, Cates, Gasper and Rodgers filing separate actions, along with a Motion to Proceed IFP.


Plaintiff also filed a Motion for Preliminary Injunction pursuant to FED.R.CIV.P. 65(a). (ECF No. 12.) Rule 65 of the Federal Rules of Civil Procedure provides that "the court may issue a preliminary injunction only on notice to the adverse party." FED.R.CIV.P.65(a). As a preliminary matter, Plaintiff's Motion for Injunction does not comply with Rule 65(a)'s important procedural notice requirement. Here, Plaintiff has not demonstrated that his Complaint, or his Motion have been served on any named Defendant.

Thus, Plaintiff's Motion does not comply with this elemental procedural requirement of Federal Rule of Civil Procedure 65(a). Thus, the Court must DENY, without prejudice, Plaintiff's Motion pursuant to FED.R.CIV.P. 65(a).

IV. SCREENING PuRSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

The Prison Litigation Reform Act ("PLRA") obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program, " "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A).

"[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, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's duty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a pro se civil rights complaint, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.

A. 42 U.S.C. § 1983 Liability

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 Constitution or laws of the United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 ...

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