United States District Court, E.D. California
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (ECF
NO. 3.) ORDER GRANTING MOTION FOR EXCEPTION TO THE 25-PAGE
LIMIT FOR THE COMPLAINT FILED ON DECEMBER 26, 2019 (ECF NO.
4.) ORDER DENYING MOTION FOR CLASS CERTIFICATION (ECF NO.
S. AUSTIN UNITED STATES MAGISTRATE JUDGE.
Nathaniel Marcus Gann (“Gann”) and fourteen
co-plaintiffs are all prisoners proceeding pro
se with this civil rights action pursuant to 42 U.S.C.
§ 1983. Plaintiff Gann is proceeding in forma
pauperis. The Complaint commencing this action was filed
on December 26, 2019. (ECF No. 1.)
December 26, 2019, Plaintiff Gann filed a motion for
appointment of counsel, motion for exception to the 25-page
limit for the Complaint, and motion for class
certification. (ECF Nos. 3, 4, 5.)
MOTION FOR APPOINTMENT OF COUNSEL
does not have a constitutional right to appointed counsel in
this action, Rand v. Rowland, 113 F.3d 1520, 1525
(9th Cir. 1997), and the Court cannot require an attorney to
represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1).
Mallard v. United States District Court for the Southern
District of Iowa, 490 U.S. 296, 298 (1989). However, in
certain exceptional circumstances the Court may request the
voluntary assistance of counsel pursuant to section
1915(e)(1). Rand, 113 F.3d at 1525.
a reasonable method of securing and compensating counsel, the
Court will seek volunteer counsel only in the most serious
and exceptional cases. In determining whether
“exceptional circumstances exist, the district court
must evaluate both the likelihood of success of the merits
[and] the ability of the [plaintiff] to articulate his claims
pro se in light of the complexity of the legal
issues involved.” Id. (internal quotation
marks and citations omitted).
present case, the court does not find the required
exceptional circumstances. Plaintiff Gann argues that this
case is meritorious, the plaintiffs' incarceration limits
their ability to litigate, the facts of the case will be
disputed, and the case is complex. At this early stage in the
proceedings, the court cannot make a determination that the
plaintiffs are likely to succeed on the merits. Plaintiffs
filed the Complaint on December 26, 2019, less than two weeks
ago, and the Complaint awaits the Court's screening
required by 28 U.S.C. § 1915. Thus, to date the Court
has not found any cognizable claims in the Complaint for
which to initiate service of process, and no other parties
have yet appeared. Moreover, based on a review of the record
in this case, the Court finds that plaintiffs can adequately
articulate their claims. Accordingly, for the foregoing
reasons, the motion for the appointment of counsel shall be
denied, without prejudice to renewal of the motion at a later
stage of the proceedings.
MOTION FOR EXCEPTION TO THE 25-PAGE LIMITATION
Gann requests that the court make an exception in this case
to the twenty-five-page limit for the Complaint pursuant to
the e-filing order. In support of his request, Plaintiff Gann
asserts that this case has more than ten plaintiffs, spans
three years of incidents and contains five causes of action.
Plaintiff Gann states that despite the preparer's best
efforts, the Complaint is twenty-nine pages long, which is
four pages over the limit. Plaintiff requests that an
exception be made to allow the extra four pages of the
cause appearing, Plaintiff's request shall be granted for
the Complaint filed on December 26, 2019.
MOTION FOR CLASS CERTIFICATION
Gann requests that this case be certified as a class action
because all of the plaintiffs are in the custody of the
California Department of Corrections and Rehabilitation
(CDCR) and participate in the Kosher Diet Program as a means
to follow sincerely held religious beliefs. Plaintiff Gann
estimates that there are 1, 800 class members housed at
various CDCR correctional institutions across California who
are not free to communicate, and there are common questions
of law at all of the CDCR institutions.
plaintiffs in this action are all non-lawyers proceeding
without counsel. It is well established that a layperson
cannot ordinarily represent the interests of a class. See
McShane v. United States, 366 F.2d 286 (9th Cir. 1966).
This rule becomes almost absolute when, as here, the putative
class representative is incarcerated and proceeding pro
se. Oxendine v. Williams, 509 F.2d 1405, 1407
(4th Cir. 1975). In direct terms, none of the plaintiffs can
”fairly and adequately protect the interests of the
class” as required by Fed.R.Civ.P. 23(a)(4). See
Martin v. Middendorf, 420 F.Supp. 779 (D.D.C. 1976). A
plaintiff's privilege to appear in propria
persona is a “privilege ... personal to him. He
has no authority to appear as an attorney for others than
himself.” McShane, 366 F.2d at 288 (citing
Russell v. United States, 308 F.2d 78, 79 (9th Cir.
1962)); Collins v. O'Brien, 93 U.S.App.D.C. 152,
208 F.2d 44, 45 (1953), cert. denied, 347 U.S. 944, 74 ...