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Bierge v. Ramos

United States District Court, E.D. California

June 6, 2017

LEERTESE BIERGE, Plaintiff,
v.
ELIZABETH RAMOS, CURRIER, MIKE NELSON, ANDREW SAUCEDO, and STEVE WHITE Defendants.

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the undersigned by E.D. Cal. R. (“Local Rule”) 302(c)(21). Plaintiff has requested leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. ECF No. 2. The request will be denied because the complaint, in its current form, is not signed by and does not appear to be brought by the plaintiff in this case, Mr. Leertese Bierge, and does not state a legal claim upon which relief can be granted. Where “plaintiff's claim appears to be frivolous on the face of the complaint, ” the district court may “deny[] plaintiff leave to file in forma pauperis.O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990).

         I. SCREENING

         Plaintiff must assist the court in determining whether the complaint is frivolous or not, by drafting his complaint so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). The Federal Rules of Civil Procedure are available online at www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure. Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and plain statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this court, rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled to relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief sought. Fed.R.Civ.P. 8(a). Plaintiff's claims must be set forth simply, concisely and directly. Fed.R.Civ.P. 8(d)(1). Forms are available to help pro se plaintiffs organize their complaint in the proper way. They are available at the Clerk's Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 95814, or online at www.uscourts.gov/forms/pro-se-forms.

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the court will (1) accept as true all of the factual allegations contained in the complaint, unless they are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the plaintiff, and (3) resolve all doubts in the plaintiff's favor. See Neitzke, 490 U.S. at 327; Erickson v. Pardus, 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011); Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010). However, the court need not accept as true legal conclusions cast in the form of factual allegations, or allegations that contradict matters properly subject to judicial notice. See Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187 (2001).

         Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se complaints are construed liberally and may only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

         A. The Complaint

         The complaint, which is unsigned, appears to make some assertions regarding the fairness of plaintiff Leertese D. Bierge's criminal trial, ECF No. 1, 9, and some assertions about a civil rights violation involving an assault, id. at 5-6. The narrative portion of the complaint was drafted by William Brown, who alleges that he is the “Legal guardian and Father of Leertese D Bierge.” Id. at 9. Mr. Brown does not submit any evidence that Leertese Bierge is a minor, is incompetent, or that he is Mr. Bierge's legal guardian with the right to sue on Mr. Bierge's behalf. Id.

         B. Analysis

         The complaint is frivolous and cannot be pursued (1) because it is not brought by the plaintiff himself, but instead by the plaintiff's father on plaintiff's behalf, without a showing that plaintiff is a minor or incompetent, or that plaintiff's father is authorized to bring a lawsuit on his behalf; and (2) because it fails to state any cognizable legal claims.

         a. Plaintiff Did Not Sign The Complaint

         The plaintiff, the person who is bringing legal claims before the Court, must personally sign complaint and include his address, e-mail address, and telephone number. Fed.R.Civ.P. 11(a). A complaint needs to be brought and signed by the “real party in interest, ” meaning the person who actually holds the legal claims in question. Fed.R.Civ.P. 17(a)(1). A litigant representing himself has no authority to represent anyone other than himself. Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962). If a person is a minor or is legally incompetent, certain kinds of representatives can sue on their behalf. Fed.R.Civ.P. 17(c)(1). These types of representatives include (A) a general guardian; (B) a committee; (C) a conservator; or (D) a like fiduciary. Id. “A general guardian is a guardian who has general care and control of the ward's person and estate.” AT&T Mobility, LLC v. Yeager, 143 F.Supp.3d 1042 (E.D. Cal. 2015) (quoting Black's Law Dictionary (10th ed. 2014)).

         Mr. William Brown appears to have drafted and submitted the complaint (ECF No. 1), the Motion to Proceed In Forma Pauperis (ECF No. 2), and all exhibits in this case on behalf of plaintiff Leertese Bierge. Though Mr. Brown asserts that he is the legal guardian of plaintiff Leertese Bierge, he does not submit any evidence that Mr. Bierge is a minor, is incompetent, or that Mr. Brown is actually Mr. Bierge's legal representative with a right to sue on his behalf. Mr. Brown's personal belief that his son has suffered “a nervous breakdown, ” ECF No. 1 at 9, does not constitute evidence of legal incompetence or demonstrate Mr. Brown's legal authority to sue on Mr. Bierge's behalf.

         b. Plaintiff's Allegations Do Not State A Legal Claim In order to survive IFP screening, the complaint must allege facts showing that defendant engaged in some conduct that the law prohibits (or failed to do something the law requires), and that in doing so, defendant harmed plaintiff. However, is not clear from the few factual allegations in the complaint whether ...


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