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Terry v. Smith

United States District Court, Ninth Circuit

July 3, 2013

DEWEY STEVEN TERRY, Plaintiff,
v.
BRAD SMITH; et al., Defendants.

ORDER OF DISMISSAL WITH LEAVE TO AMEND

EDWARD M. CHEN, District Judge.

Dewey Steven Terry, an inmate currently at the San Quentin State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. His complaint is now before the Court for review under 28 U.S.C. § 1915A, which requires the Court to identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b).

The complaint fails to state a claim upon which relief may be granted. The complaint directs the reader to "please see attachment sheet, " Docket # 1, p. 3, for a statement of the claim, but there is no statement of claim attached to the form complaint; instead, there are about 160 pages of miscellaneous exhibits. It is a plaintiff's obligation to write out a complete statement of his claims, rather than to expect the Court to read through exhibits to piece one together for him. Plaintiff will be given leave to amend to file an amended complaint that provides a complete statement of his claims.

In preparing his amended complaint, Plaintiff must allege facts showing the basis for liability for each defendant. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff also is cautioned that he needs to link individual defendants to each of his claims. He should not refer to them as a group ( e.g., "the defendants"); rather, he should identify each involved defendant by name and link each of them to his claim by explaining what each involved defendant did or failed to do that caused a violation of his rights. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).[1]

One of the exhibits attached to the complaint is a "civil client agreement between counsel & co-counsel and the grantee's, " Docket # 1, p. 5, that appears to be some sort of fee agreement for plaintiff and another inmate to represent a group of other inmates in this action which they plan to pursue as a class action. Only licensed attorneys may practice law in California. See Cal. Bus. & Prof. Code § 6126 (criminalizing the unauthorized practice of law). "[A] litigant appearing in propria persona has no authority to represent anyone other than himself." Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962). Plaintiff's allegations that suggest he wants to pursue a class action are dismissed because pro se prisoner-plaintiffs are not adequate class representatives able to fairly represent and adequately protect the interests of a class. See Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). Plaintiff may pursue claims only about violations of his own rights, and therefore should confine himself to such allegations in his amended complaint. Any other prisoner who wants to pursue a claim about a violation of his own rights must file his own civil action.

The amended complaint fails to state a claim upon which relief may be granted against any defendant. Leave to amend will be granted so that Plaintiff may attempt to state a claim. The amended complaint must be filed no later than August 5, 2013, and must include the caption and civil case number used in this order and the words AMENDED COMPLAINT on the first page. The amended complaint must be a complete statement of his claims. See Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc) ("For claims dismissed with prejudice and without leave to amend, we will not require that they be repled in a subsequent amended complaint to preserve them for appeal. But for any claims voluntarily dismissed, we will consider those claims to be waived if not repled.") Failure to file the amended complaint by the deadline will result in the dismissal of the action for failure to state a claim upon which relief may be granted.

IT IS SO ORDERED.


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