Valdez v. Marquez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICARDO VALDEZ, Case No.: 21-cv-1500-MMA (RBM) CDCR #E-98488, 12 ORDER DISMISSING AMENDED Plaintiff, 13 COMPLAINT WITHOUT vs. PREJUDICE 14 15 DR. MARQUEZ, 16 Defendant. 17 18 19 On August 24, 2021, Ricardo Valdez (“Valdez”), currently incarcerated at the 20 Richard J. Donovan State Prison (“RJD”) located in San Diego, California, and proceeding 21 pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. Doc. No. 1. Valdez did 22 not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead, he filed a Motion 23 to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). Doc. No. 2. 24 On October 7, 2021, the Court granted Valdez’s IFP motion, dismissed some of the 25 claims in his complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and gave 26 Valdez sixty (60) days within which to notify the Court of his intent to proceed with his 27 undismissed claims or file an Amended Complaint that cured the pleading deficiencies 28 outlined in the Court’s October 7, 2021 Order. Doc. No. 4. 1 On November 8, 2021, an Amended Complaint was filed in this case, but the 2 Plaintiff was no longer identified as Valdez. Instead, Raul Arellano was listed as the 3 Plaintiff. See ECF No. 5 (“FAC”). 4 DISCUSSION 5 The allegations in the Amended Complaint are the same as those in the original 6 Complaint. Compare Doc. No. 1 at 3–5 with FAC at 3–8. The named Plaintiff, however, 7 has changed. In the original Complaint, the Plaintiff is identified as “Ricardo Valdez.” 8 Doc. No. 1 at 1. In the Amended Complaint, however, the Plaintiff is identified as “Raul 9 Arellano.” FAC at 1. 10 A pro se litigant cannot represent anyone but himself and does not have the authority 11 to assert others’ claims vicariously. See Johns v. County of San Diego, 114 F.3d 874, 876 12 (9th Cir. 1997) (“While a non-attorney may appear pro se on his own behalf, he has no 13 authority to appear as an attorney for others than himself.”); C.E. Pope Equity Trust 14 v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (same); see also Simon v. Hartford Life 15 Ins. Co., 546 F.3d 661, at 664–65 (9th Cir. 2008) (citing cases “adher[ing] to the general 16 rule prohibiting pro se plaintiffs from pursuing claims on behalf of others in a 17 representative capacity”); CivLR 83.11 (“Any person who is appearing propria persona, 18 (without an attorney) (i.e. pro se) must appear personally for such purpose and may not 19 delegate that duty to any other person, including husband or wife, or another party on the 20 same side appearing without an attorney.”). Therefore, because Arellano may not represent 21 Valdez’s interests in this case, it is subject to dismissal. See id. (“Any person appearing 22 propria persona is bound by these rules of court and by the Fed. R. Civ. P. or Fed. R. 23 Crim.P., as appropriate. Failure to comply therewith may be ground for dismissal or 24 judgment by default.”). 25 CONCLUSION 26 In its October 7, 2021 Order, the Court concluded that Valdez had stated an Eighth 27 Amendment claim against Defendant Marquez but dismissed Valdez’s retaliation claim 28 against Marquez for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and 1 1915A(b). Doc. No. 4. Because Arellano is not permitted to represent Valdez, the Court 2 || DISMISSES the Amended Complaint without prejudice. The Court GRANTS Plaintiff 3 || RICARDO VALDEZ thirty (30) days leave from the date of this Order in which to file 4 ||an Amended Complaint which cures all of the deficiencies of pleading noted in this Order 5 ||and the Court’s October 7, 2021 Order. Valdez’s Amended Complaint must be complete 6 itself without reference to his original pleading. Any Defendants not named and any 7 claims not re-alleged in the Amended Complaint will be considered waived. See CivLR 8 || 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 9 || 1989) (‘[A]n amended pleading supersedes the original.”); Lacey v. Maricopa County, 693 10 || F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are 11 re-alleged in an amended pleading may be “considered waived if not repled”). 12 IT IS SO ORDERED. 13 Dated: January 5, 2022 14 BMiikuk lM -£ hipltr 15 HON. MICHAEL M. ANELLO 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28