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Neiman-Thomas v. San Luis Obispo Correctional Department

United States District Court, C.D. California

July 10, 2017

JOSHUA NEIMAN-THOMAS, Plaintiff,
v.
SAN LUIS OBISPO CORRECTIONAL DEPARTMENT, et at., Defendants.

          ORDER TO SHOW CAUSE WHY COURT SHOULD NOT RECOMMEND DENIAL OF REQUEST TO PROCEED WITHOUT PREPAYMENT OF FILING FEES

          ALICIA G. ROSENBERG United States Magistrate Judge

         For the reasons set forth below, the court orders Plaintiff to show cause on or before August 10, 2017, why this court should not recommend denial of his request to proceed without prepayment of filing fees.

         On July 6, 2017, Plaintiff, who is proceeding pro se, filed a civil rights complaint along with a Request to Proceed in forma pauperis (“IFP Request”).

         The Plaintiff's name is Joshua Neiman Thomas.[1] However, the complaint contains one claim that a person named “Murmur, ” “suffered an unconstitutional deprivation of his rights.” (Compl. at 2.) The complaint alleges that Murmur was terminated from his position as art teacher for, among other things, “‘the way he does his art, ' for ‘appearance and behavior [,, , that] is vulgar, [...] is conduct unbecoming of a teacher, and [...] has caused disruption in the school.'” (Id.)

         The prayer for relief states that “Plaintiff, Stephen Murmur” requests declaratory relief and equitable relief regarding unconstitutional employment practices, damages, attorneys fees and costs. (Id. at 3.)

         I. PLAINTIFF MAY SUE ONLY ON HIS OWN BEHALF

         The complaint seeks relief for constitutional violations suffered by Stephen Murmur. Plaintiff, however, is not Stephen Murmur.

         “Any person representing himself or herself in a case without an attorney must appear pro se for such purpose. That representation may not be delegated to any other person - even a spouse, relative, or co-party in the case.” Local Rule 83-2.2.1; see C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987).

         Accordingly, if Plaintiff decides to proceed with this case, he must allege claims only on his own behalf and cannot allege claims on behalf of Stephen Murmur or anyone else.

         II. ALLEGATIONS THAT MAY PERTAIN TO PLAINTIFF

         Although the complaint does not expressly state any claim on behalf of Plaintiff, the only allegation in the complaint that may refer to Plaintiff states:

Plaintiff[] brings this action resulting from damages incurred due to unlawful seizure and detention from the County of San Luis Obispo, San Luis Obispo Sheriff's Department, Grover Beach Police Department and Mendocino County Correctional Department on or about June 18th 2015 and December 2016, respectively. (Id. at 2.) The caption names the following as Defendants: San Luis Obispo Correctional Department, Grover Beach Police Department, Detective Reggio Bio, Detective Angelo Limon, [2] Deputy James Elmore and Community Bail Bonds. (Id. at 1.)

         If Plaintiff seeks to claim false arrest and false imprisonment, he must allege facts sufficient to show the absence of probable cause to arrest him and detain him for trial. See Wige v. City of Los Angeles, 713 F.3d 1183, 1185 (9th Cir. 2013). The complaint does not allege any facts showing the absence of probable cause. The complaint does not contain any facts indicating the charges on which he was arrested or detained, the circumstances of his arrest or detention, or what each named defendant did or did not do in connection with the arrest or detention.

         The Court cautions Plaintiff that any false arrest or false imprisonment claim may be barred, pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), if he was convicted and that conviction has not been overturned. See Lyall v. City of Los Angeles, 807 F.3d 1178, 1190 (9th Cir. 2015) (Heck bars claim of unreasonable seizure by police); Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th ...


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