(PC) Kamali v. Stevens ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ARBI KAMALI, 1:19-cv-01432-JLT-GSA-PC 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO PERMIT A NON-PARTY INMATE TO 13 vs. APPEAR AND ASSIST PLAINTIFF AT PLAINTIFF’S DEPOSITION 14 STEVENS, et al., (ECF No. 32.) 15 Defendants. 16 17 18 19 20 I. BACKGROUND 21 Plaintiff Arbi Kamali (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis in this civil rights action under 42 U.S.C. § 1983. This case now proceeds with 23 Plaintiff’s claims for retaliation and excessive force against defendants correctional officers Rose 24 Stevens, Ivan Villegas, Jordan Bryan, and Alen Hernandez (“Defendants”). (ECF No. 16.) 25 On January 20, 2022, Plaintiff filed a motion for the court to allow Plaintiff’s fellow 26 inmate Charles A. Rogers to assist him at Plaintiff’s his deposition. (ECF No. 32.) On February 27 10, 2022, Defendants filed an opposition to the motion, (ECF No. 42), and on February 28, 2022, 28 Plaintiff replied to the opposition, (ECF No. 44). 1 II. UNAUTHORIZED PRACTICE OF LAW 2 The Ninth Circuit has held that “constitutional claims are personal and cannot be asserted 3 vicariously,” and that an individual “has no authority to appear as an attorney for others than 4 himself.” Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.1997) (citing United States 5 v. Mitchell, 915 F.2d 521, 526 n. 8 (9th Cir.1990) (quoting C.E. Pope Equity Trust v. United 6 States, 818 F.2d 696, 697 (9th Cir.1987)). No person or entity may appear on behalf of a plaintiff 7 unless they are licensed as a lawyer. See Id. 8 While cases guarantee prisoners the right to seek assistance and advice on legal matters 9 from other inmates in certain matters, the cases do not permit representation during litigation by 10 non-party lay-persons. Denson v. Gillispie, No. 2:10-CV-00525-MMD, 2013 WL 662967, at *4 11 (D. Nev. Feb. 21, 2013) (emphasis in original) (citing Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 12 747, 21 L.Ed.2d 718 (1969) and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 13 935 (1974)). Plaintiff may consult with an inmate assistant before the deposition, may review 14 the deposition transcripts with the inmate assistant, and may have the inmate assistant assist in 15 researching and preparing any dispositive or discovery motion based on the depositions. See 16 Avery, 93 U.S. 483; Wolff, 418 U.S. at 577–580. However, to have an inmate assistant represent 17 Plaintiff at depositions is not permissible and would condone the unauthorized practice of law. 18 See Johns, 114 F.3d at 876. Because Mr. Rogers is not a lawyer authorized to practice in this 19 Court, he may not pursue relief on behalf of anyone else. Bryant v. Cent. Intel. Agency, No. 20 220CV01138ODWGJS, 2020 WL 606757, at *3 (C.D. Cal. Feb. 7, 2020) (citing see C.E. Pope 21 Equity Trust, 818 F.2d at 697 (a layperson acting in pro per may not appear or seek relief on 22 behalf of others). 23 III. PLAINTIFF’S MOTION 24 Plaintiff requests permission to have fellow inmate Charles A. Rogers assist him at the 25 “eventual deposition of Plaintiff.” (ECF No. 32 at 1.) Plaintiff acknowledges that Defendants 26 have not yet informed him that they intend to take his deposition. Plaintiff also admits that Mr. 27 Rogers has assisted Plaintiff in drafting and propounding discovery requests upon Defendants, 28 drafting and filing the present motion, “put[ting] together a discovery strategy” for Plaintiff, and 1 authoring other motions and discovery requests on Plaintiff’s behalf. (Decl. Pltf, ECF No. 32 at 2 5 ¶¶2,3.) Plaintiff requests that Mr. Rogers be allowed to sit in during the deposition, but not to 3 testify. Mr. Rogers would also assist in pointing to any improper questions, if and when Plaintiff 4 is to object, and placing the appropriate documents in front of Plaintiff so he can accurately 5 respond to deposition questions. Mr. Rogers would also inform Plaintiff of the reasons he should 6 object to a question during the deposition. (Decl. Rogers, ECF No. 32 at 8 ¶ 5.) 7 Defendants first oppose Plaintiff’s motion because it is premature, as discovery in this 8 case is stayed, Defendants have not noticed Plaintiff’s deposition and Defendants’ dispositive 9 motion is pending which may dispose of the case. Second, Defendants argue that Plaintiff’s 10 request is an improper request for non-attorney representation and, based on Plaintiff’s and 11 Charles A. Rogers’ statements, Mr. Rogers has already egregiously flaunted the laws of 12 California by engaging in the unauthorized practice of law. In addition, Defendants state that it 13 is standard practice in the industry that during a deposition all non-party persons are excluded 14 from the room, aside from the court reporter. 15 In reply, Plaintiff asserts that Mr. Rogers never asked the court to allow him to represent 16 Plaintiff, and Plaintiff never requested that Mr. Rogers be allowed to accompany Plaintiff inside 17 the courtroom. 18 IV. DISCUSSION 19 The court finds that Plaintiff has not demonstrated that circumstances in this action 20 warrant permitting an inmate to assist Plaintiff during his deposition. An individual engages in 21 the unauthorized practice of law when he engages in activities customarily performed by licensed 22 attorneys, Warren v. Nevada Dep’t of Corr., No. 317CV00228MMDCSD, 2022 WL 1241821, at 23 *1 (D. Nev. Apr. 27, 2022) (citing In re Discipline of Lerner, 197 P.3d 1067, 1071 (Nev. 2008), 24 such as representing clients and giving legal advice. Here, while Plaintiff may not have asked 25 the court to allow Mr. Rogers to represent him at a deposition, Plaintiff requests the court to 26 allow Mr. Rogers to assist in pointing out improper questions that Plaintiff should object to, 27 placing appropriate documents in front of Plaintiff so he can accurately respond to the deposition 28 questions, and informing Plaintiff of the reasons he should object to a question during the 1 deposition, does exactly that. The court finds that this type of assistance to Plaintiff during a 2 deposition constitutes legal advice and therefore the unauthorized practice of law. Accordingly, 3 Plaintiff’s motion must be denied. 4 V. CONCLUSION 5 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for the court 6 to allow a fellow inmate to assist him at his deposition is denied. 7 IT IS SO ORDERED. 8 9 Dated: May 23, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28