Goff 186716 v. Trinity Services Group ( 2021 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Shawn Charles Goff, No. CV-21-00702-PHX-DLR (JFM) 10 Plaintiff, ORDER 11 v. 12 Trinity Services Group, et al., 13 Defendants. 14 15 Pending before the Court is the October 1, 2021, Report and Recommendation 16 (“R&R”) of Magistrate Judge James F. Metcalf. (Doc. 34.) The R&R recommends that 17 (1) the Plaintiff’s Motion for Class Certification be denied and Plaintiffs Holguin, 18 Benavidez, Delgado, Darrington, Acosta, Hernandez, Ward, DeYoung, Dawkins, Devine 19 and Randall be dismissed without prejudice, (2) Plaintiff’s claims based on events that 20 allegedly occurred before December 21, 2020 be dismissed as duplicative of Plaintiff’s 21 claims in CV-20-1288, (3) Plaintiff’s claims against Defendant Shinn in his individual 22 capacity be dismissed, (4) Defendants Trinity and Keefe be required to answer Count One 23 to the extent that the allegations are based on events that occurred after December 21, 2020, 24 and (5) Defendant Shinn be required to answer Plaintiff’s claims for injunctive relief in his 25 official capacity only, and Defendants Trinity, Keefe and Shinn be given 14 days from an 26 order on the R&R to file an answer to the Second Amended Complaint. Plaintiff Shawn 27 Charles Goff timely objected. (Doc. 35.) The Court has considered the objections and 28 reviewed the R&R de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). 1 The R&R correctly determined that the Motion for Class Certification should be 2 denied. Class certification was denied under the First Amended Complaint because 3 Plaintiffs could not proceed pro se as representatives of the class. Although a plaintiff may 4 appear on his own behalf, he may not appear as an attorney for other persons in a class 5 action. McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966) (nonlawyer had no 6 authority to appear as an attorney for other persons in a purported class action); see also 7 Huddleston v. Duckworth, 97 F.R.D. 512, 514 (N.D. Ind. 1983) (noting that even attorneys 8 could not act as both the class representative and counsel for that class). 9 Goff argues that the deficiency of the previous class action lawsuit has been cured 10 because his “co-plaintiffs” have signed the Second Amended Complaint and meet all the 11 requirements for class certification under Rule 23(a)(1)(2)&(3) as well as under Rule 12 23(b)(1)(A)(B)(2) and (3). (Doc. 35 at 5.) But this misses the R&R’s point, which 13 reasoned that the Plaintiffs, except for Goff, appear solely as representative members of a 14 class action. They are not attempting to prosecute their individual claims. Thus, “if class 15 certification is not granted, the Court should not again sever the Plaintiffs claims into 16 separate actions, but should honor Plaintiffs’ decisions to not proceed individually, and 17 instead dismiss all but Plaintiff Goff from this suit, without prejudice.” (Doc. 34 at 5.) 18 Even if no class is certified, Goff argues, “plaintiffs meet requirements for extreme 19 difficulties/complexities necessitating appointment of counsel,” because of the 20 “Defendants’ prior history of disobeying/failing to follow court orders.” (Doc. 35 at 5.) 21 But the likelihood of success is not sufficiently apparent to qualify as an exceptional 22 circumstance, and there is nothing to indicate that Goff or the other plaintiffs will be less 23 capable than other pro se prisoners or that their claims are more complex than those 24 advanced by other prisoners. The claim that Plaintiffs are uneducated does not establish 25 the basis for appointment of counsel. The R&R pointed out that the screening Order 26 observed: “Circumstances common to most prisoners, such as a lack of legal education and 27 limited law library access, do not establish exceptional circumstances that warrant a request 28 for voluntary assistance of counsel.” (Order 5/7/21, Doc. 8 at 9, citing Palmer v. Valdez, 1 560 F.3d 965, 970 (9th Cir. 2009); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 2 1986)). 3 Further, the argument about an alleged history of abuses by Defendant was not 4 raised before and cannot be raised for the first time in the objection to the R&R. 5 Nonetheless it does not establish the basis for appointment of counsel. Goff is aware of 6 the alleged discovery abuses and knows how to raise them with the Court. 7 Plaintiffs cannot proceed as pro se representatives and are still not entitled to 8 counsel. There still has been no sufficient showing of a likelihood of success to warrant the 9 request of counsel under 28 U.S.C. § 1915(e)(1), and there was no exceptional difficulty 10 in Goff representing himself. Plaintiff did not object to the remainder of the findings in 11 the R&R. Because the R&R’s reasoning is correct, Plaintiff’s objections to the R&R are 12 overruled and the R&R is accepted. 13 IT IS ORDERED that Goff’s Response Objecting to Magistrate Court’s Report 14 and Recommendation (Doc. 35) is OVERRULED. 15 IT IS ORDERED that the R&R (Doc. 34) is ACCEPTED. 16 IT IS ORDERED that Plaintiff’s Motion for Class Certification (Doc. 23) is 17 DENIED. 18 IT IS ORDERED that Plaintiffs Holguin, Benavidez, Delgado, Darrington, Acosta, 19 Hernandez, Ward, DeYoung, Dawkins, Devine and Randall are DISMISSED WITHOUT 20 PREJUDICE. 21 IT IS ORDERED that Plaintiff’s claims based on events that allegedly occurred 22 before December 21, 2020, are DISMISSED as duplicative of Plaintiff’s claims in CV-20- 23 1288. 24 IT IS ORDERED that Plaintiff’s claims against Defendant Shinn in his individual 25 capacity are DISMISSED. 26 IT IS ORDERED that Defendants Trinity and Keefe shall answer Count One to the 27 extent that the allegations are based on events that occurred after December 21, 2020. 28 IT IS ORDERED Defendant Shinn shall answer, in his official capacity only, 1|| Plaintiffs claims for injunctive relief. 2 IT IS ORDERED that Defendants Trinity, Keefe and Shinn shall file an answer to 3 || the Second Amended Complaint within 14 days from this order. 4 IT IS ORDERED that this matter is referred to Magistrate Judge Metcalf pursuant 5 || to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 6|| authorized under 28 U.S.C. § 636(b)(1). 7 Dated this 15th day of December, 2021. 8 9 10 {Z, 11 _- {UO 12 Upited States Dictric Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-