Opinion
CV-24-01721-PHX-JAT (JZB)
10-07-2024
Luke Zion Yochai-Adams-Trimmer, Plaintiff, v. Department of Child Safety, et al., Defendants.
ORDER
James A. Teilborg Senior United States District Judge
Self-represented Plaintiff Luke Zion Yochai-Adams-Trimmer, who is also known as Zion Z. Kauffman, is confined in the Arizona State Prison Complex-Lewis. On July 12, 2024, he filed a civil rights Complaint (Doc. 1). He subsequently filed:
(1) an August 6 Motion to Get Case Status (Doc. 4);
(2) an August 6 Application to Proceed In Forma Pauperis (Doc. 5);
(3) an August 23 Motion to Get Case Status (Doc. 7);
(4) an August 23 Motion to Move as a Class Action (Doc. 8);
(5) an August 30 Motion to Add Three Documents (Doc. 9);
(6) a September 5 Motion to Add More Plaintiffs (Doc. 10);
(7) a September 5 Motion to Add Three Documents (Doc. 11);
(8) a September 5 Motion to Add Documents (Doc. 12);
(9) a September 10 Motion to Get an Injunction (Doc. 13); and
(10) a September 17 Motion to Add Documents to Injunction Request (Doc. 14).
The Court will grant the Application to Proceed In Forma Pauperis. The Court will grant the Motions to Get Case Status to the extent this Order provides Plaintiff with the status of this action. The Court will dismiss the Complaint with leave to amend, deny the Motion to Move as a Class Action and the Motion to Add More Plaintiffs, and deny as moot the multiple Motions seeking to add documents. Finally, the Court will strike the Motion to Get an Injunction and Motion to Add Documents to Injunction Request.
I. Application to Proceed In Forma Pauperis and Filing Fee
The Court will grant Plaintiff's Application to Proceed In Forma Pauperis. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C § 1915(b)(1). The Court will assess an initial partial filing fee of $16.62. The remainder of the fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.
II. Motion to Add More Plaintiffs
Plaintiff seeks to add multiple government agencies, a government employee, the President of Israel, “Ms. Cotton,” and two corporations as plaintiffs to this action. Although a non-lawyer may appear on his own behalf in his own case, a non-lawyer “has no authority to appear as an attorney for others.” Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (quoting C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987)). Thus, the Court will deny Plaintiff's Motion to Add More Plaintiffs.
III. Motion to Move as a Class Action
Plaintiff seeks to add six individuals “as a class action lawsuit against all part[ies] listed” and requests the Court send Plaintiff the documents for those individuals “due to [Plaintiff] filing all document[s].”
One prerequisite to maintaining a class action is that the “representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). Although Plaintiff may appear on his own behalf, he may not appear as an attorney for other persons in a class action. McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966) (non-lawyer had no authority to appear as an attorney for other persons in a purported class action); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (plain error to permit an inmate proceeding pro se to represent fellow inmates in a class action). “This rule is an outgrowth not only of the belief that a layman, untutored in the law, cannot ‘adequately represent' the interests of the members of the ‘class,' but also out of the long-standing general prohibition against even attorneys acting as both class representative and counsel for the class.” Huddleston v. Duckworth, 97 F.R.D. 512, 514 (N.D. Ind. 1983). Thus, the Court will deny Plaintiff's Motion to Move as a Class Action.
IV. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).
Local Rule of Civil Procedure 3.4 requires in part that “[a]ll complaints . . . by incarcerated persons shall be signed and legibly written or typewritten on forms approved by the Court and in accordance with the instructions provided with the forms.” Section 12, Part C(1), of the instructions provides:
Supporting Facts. After you have identified which civil right was violated, you must state the supporting facts. Be as specific as possible. You must state what each individual defendant did to violate your rights. If there is more than one defendant, you must identify which defendant did what act. You also should state the date(s) on which the act(s) occurred, if possible.Likewise, the Supporting Facts section of each count of the court-approved form requires plaintiffs to state the facts supporting each count and to: “Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments.”
In the Supporting Facts section of each count, Plaintiff states: “Count[s] 1, 2 and 3 are continued on Affidavit[.] See Att[ach]ment listed as B3 of 5.” This does not comply with the court-approved form and instructions. Moreover, Plaintiff's attachment is a rambling narrative that is not separated by count. The Court will not comb through the attachment to determine which allegations support each claim. See Ferrell v. Durbin, 311 Fed.Appx. 253, 259 (11th Cir. 2009) (“Neither this Court nor the district court is required to parse the complaint searching for allegations . . . that could conceivably form the basis of each of Appellants' claims.”); cf. Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[J]udges are not like pigs, hunting for truffles buried in briefs.” (quoting United States v. Dunkel, 927 F.2d 955 (7th Cir. 1991))).
The Court will therefore dismiss without prejudice Plaintiff's Complaint, with leave to amend, so Plaintiff can file an amended complaint on a court-approved form and in accordance with the instructions provided with the form.
V. Leave to Amend
Within 30 days, Plaintiff may submit a first amended complaint on a court-approved form. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the “First Amended Complaint.” The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.
A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. RichardFeiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original Complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
If Plaintiff files an amended complaint, Plaintiff must write short, plain statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that Defendant's conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).
Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to state a claim. Conclusory allegations that a Defendant or group of Defendants has violated a constitutional right are not acceptable and will be dismissed.
If Plaintiff files an amended complaint, he should take note that the Arizona Department of Child Safety is not a proper Defendant. Under the Eleventh Amendment to the Constitution of the United States, a state or state agency may not be sued in federal court without its consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Furthermore, “a state is not a ‘person' for purposes of section 1983. Likewise ‘arms of the State' such as the Arizona Department of [Child Safety] are not ‘persons' under section 1983.” Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (citation omitted).
Plaintiff should also be aware that judges are absolutely immune from suits under 42 U.S.C. § 1983 for damages for their judicial acts except when they are taken “in the ‘clear absence of all jurisdiction.'” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). An act is “judicial” when it is a function normally performed by a judge and the parties dealt with the judge in his or her judicial capacity. Stump, 435 U.S. at 362; Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir. 1990). This immunity attaches even if the judge is accused of acting maliciously and corruptly, Pierson v. Ray, 386 U.S. 547, 554 (1967), or of making grave errors of law or procedure. See Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988).
VI. Motions to Add Documents
Plaintiff has filed an August 30 Motion to Add Three Documents, a September 5 Motion to Add Three Documents, and a September 5 Motion to Add Documents. The Court will deny as moot these Motions.
When a party files a pleading containing documents, the documents become part of the record in the action. However, Plaintiff is advised that the Court is not a storage facility for Plaintiff's paperwork. Plaintiff should keep exhibits to use to support or oppose a motion to dismiss, a motion for summary judgment, or at trial.
VII. Motion to Get an Injunction and Motion to Add Documents to Injunction Request
Both Plaintiff's Motion to Get an Injunction and Motion to Add Documents to Injunction Request contain the case number of this action and another action. In Kauffman v. D.C.S., CV-23-08128-PCT-JAT (JZB), and Kauffman v. Mohave County, CV-23-08030-PCT-JAT (JZB), the Court advised Plaintiff that
he may not file a single pleading with more than one case number on it. If Plaintiff wants the Court to take action in more than one case, he must file a separate original pleading with the appropriate case number in each case. If Plaintiff fails to comply with this requirement in the future, the Court will strike the pleading and will take no action on it.See Doc. 18 in CV-23-08128 and Doc. 32 in CV-23-08030.
Thus, the Court will strike the Motion to Get an Injunction and the Motion to Add Documents to Injunction Request and will take no action on them.
Even if the Court had considered the Motion to Get an Injunction, the Court would have denied it because the Court has dismissed the Complaint. An injunction is appropriate to grant “intermediate relief of the same character as that which may be granted finally,” but relief is not proper when it is requested on matters lying wholly outside the issues in the suit. DeBeers Consol. Mines v. United States., 325 U.S. 212, 220 (1945). To obtain injunctive relief, the party “must necessarily establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint.” Devose v. Herrington, 42 F.3d"470, 471 (8th Cir. 1994) (per curiam). In other words, Plaintiff must seek injunctive relief related to the merits of his underlying claims.
VIII. Warnings
A. Release
If Plaintiff is released while this case remains pending, and the filing fee has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court that he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
C. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 5) is granted.
(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $16.62.
(3) The Complaint (Doc. 1) is dismissed for failure to comply with Local Rule of Civil Procedure 3.4. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.
(4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action without prejudice and deny any pending unrelated motions as moot.
(5) Plaintiff's Motions to Get Case Status (Docs. 4 and 7) are granted to the extent this Order provides Plaintiff with the status of this action.
(6) Plaintiff's Motion to Move as a Class Action (Doc. 8) and Motion to Add More Plaintiffs (Doc. 10) are denied.
(7) Plaintiff's Motions to Add Three Documents (Docs. 9 and 11) and Motion to Add Documents (Doc. 12) are denied as moot.
(8) The Clerk of Court must strike Plaintiff's Motion to Get an Injunction (Doc. 13) and Motion to Add Documents to Injunction Request (Doc. 14).
(9) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.