lay person 16 lacks authority to appear as an attorney for others
How later courts described this case
- lay person 16 lacks authority to appear as an attorney for others
- district court has 10 discretion to dismiss in forma pauperis complaint under 28 U.S.C. § 1915(e)
- upholding dismissal of class action claims because 13 Plaintiff, as a pro se litigant, was not able to act as an adequate class representative
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 CHRIS EPPERSON, Case No. 1:22-cv-00855-SKO
12 Plaintiff, FIRST SCREENING ORDER
13 v. ORDER FOR PLAINTIFF TO:
14 UNITED STATES, et al., (1) FILE A FIRST AMENDED COMPLAINT;
OR
15 Defendants.
(2) NOTIFY THE COURT THAT HE
16 WISHES TO STAND ON HIS
COMPLAINT
17
(Doc. 1)
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THIRTY-DAY DEADLINE
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21 Plaintiff Chris Epperson is proceeding pro se and in forma pauperis in this action.
22 Plaintiff filed his complaint on July 11, 2022. (Doc. 1). Upon review, the Court concludes that
23 the complaint fails to state any cognizable claims.
24 Plaintiff has the following options as to how to proceed. Plaintiff may file an amended
25 complaint, which the Court will screen in due course. Alternatively, Plaintiff may file a statement
26 with the Court stating that he wants to stand on this complaint and have it reviewed by the
27 presiding district judge, in which case the Court will issue findings and recommendations to the
28 district judge consistent with this order. If Plaintiff does not file anything, the Court will
1 recommend that the case be dismissed.
2 I. SCREENING REQUIREMENT
3 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to
4 screen each case and shall dismiss the case at any time if the Court determines that the allegation
5 of poverty is untrue, or that the action or appeal is frivolous or malicious, fails to state a claim
6 upon which relief may be granted, or seeks monetary relief against a defendant who is immune
7 from such relief. 28 U.S.C. § 1915(e)(2). See Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001)
8 (dismissal required of in forma pauperis proceedings which seek monetary relief from immune
9 defendants); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district court has
10 discretion to dismiss in forma pauperis complaint under 28 U.S.C. § 1915(e)); Barren v.
11 Harrington, 152 F.3d 1193 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a
12 claim). If the Court determines that a complaint fails to state a claim, leave to amend may be
13 granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v.
14 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
15 In determining whether a complaint fails to state a claim, the Court uses the same pleading
16 standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and
17 plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P.
18 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of
19 a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,
20 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A
21 complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack
22 of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. See
23 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Plaintiff must allege a
24 minimum factual and legal basis for each claim that is sufficient to give each defendant fair notice
25 of what the plaintiff’s claims are and the grounds upon which they rest. See, e.g., Brazil v. U.S.
26 Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th
27 Cir. 1991).
28 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and
1 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89,
2 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, a
3 court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A]
4 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops
5 short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting
6 Twombly, 550 U.S. at 557).
7 II. SUMMARY OF PLAINTIFF’S COMPLAINT
8 Plaintiff drafted his complaint using the general complaint form provided by this Court.
9 The caption of the complaint lists the United States as the defendant. (Doc. 1.) The complaint
10 lists as defendants: “FBI,” “CIA,” “DEA,” and “Donald Trump.” (Id. at 2–3.) Plaintiff has
11 checked both federal question and diversity of citizenship as the basis of jurisdiction. (Id. at 3.)
12 In the section in which he is asked to indicate which of his federal constitutional or federal
13 statutory rights have been violated, he lists the following: Title VII of the Civil Rights Act of
14 1964, 42 U.S.C. § 2000e, and “Rehabi[li]tation Act, 29 U.S.C. [§] 791.” (Id. at 4.) In the section
15 directed to the basis for diversity jurisdiction, Plaintiff states he is a citizen of the State of
16 California, but he does not provide citizenship information for the aforementioned defendants.
17 (Id. at 4–5.) Plaintiff instead identifies Geoffrey Binriey as a defendant and alleges that Mr.
18 Binriey is a citizen of the State of Texas. (Id. at 4.) Plaintiff lists the amount in controversy as
19 “economic oppression 1 million dollars.” (Id. at 5.) The statement of claim section states as
20 follows: “economic discrimination based on sex gender nationality race and religion.” (Doc. 1 at
21 5.) The requested relief section states as follows: “economic sanction embargo economic [sic]
22 boycott equal opportunity employment discrimination forced labour bonded labour individuals.”
23 (Id. at 6.)
24 The Civil Cover Sheet lists the defendant as the United States and states that the county of
25 residence for the defendant is “49 states FBI CIA DEA.” The basis of jurisdiction is “U.S.
26 Government Plaintiff.” (See id.) The nature of suit is listed as “other civil rights.” (Id.) The
27 U.S. Civil Statute under which Plaintiff is filing is described as “472c,” and the cause of action is
28 described as “Article III Constitution.” (Id.) Plaintiff has checked the box on the civil cover
1 sheet indicating this is a class action under Federal Rule of Civil Procedure 23, and he lists the
2 demand as “zillion” dollars. (Id.)
3 III. DISCUSSION
4 For the reasons discussed below, the Court finds that the complaint does not state any
5 cognizable claims. Plaintiff shall be provided with the legal standards that appear to apply to his
6 claims and will be granted an opportunity to file an amended complaint to correct the identified
7 deficiencies.
8 A. Rule 8
9 Rule 8 requires that a complaint must contain “a short and plain statement of the claim
10 showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Plaintiff’s complaint
11 violates Rule 8 because it does not contain a short and plain statement of the claim demonstrating
12 that he is entitled to relief.
13 Although the Federal Rules use a flexible pleading policy, Plaintiff is required to give fair
14 notice to the defendants of the basis of the claim and must allege facts that support the elements
15 of the claim plainly and succinctly. A complaint must contain sufficient factual allegations to
16 give the defendant fair notice of the claim and the grounds upon which it rests. Twombly, 550
17 U.S. at 555. Here, the statement of claim section merely states, “economic discrimination based
18 on sex gender nationality race and religion.” (Doc. 1 at 5.). There are no factual allegations in
19 the complaint that identify the basis for Plaintiff’s Title VII and Rehabilitation Act claims.
20 Furthermore, a complaint is required to contain sufficient factual content for the court to draw the
21 reasonable conclusion that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at
22 678. Again, without any factual allegations, it is impossible to determine what Plaintiff is
23 alleging has occurred or how the defendants are alleged to be responsible.
24 Further, Rule 8 requires that the complaint must state a demand for the relief sought. Fed.
25 R. Civ. P. 8(a)(3). The relief requested in the complaint is “economic sanction embargo
26 economic [sic] boycott equal opportunity employment discrimination forced labour bonded
27 labour individuals,” the meaning of which is unclear to the Court. (See Doc. 1 at 6.)
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1 Accordingly, Plaintiff needs to clearly articulate the relief that he is seeking in the action (e.g.,
2 damages or injunctive relief) if he elects to file an amended complaint.
3 ///
4 B. Plaintiff Cannot Maintain a Class Action
5 Plaintiff’s civil cover sheet indicates that the complaint is a class action under Federal
6 Rule of Civil Procedure 23. (Doc. 1-1.) As Plaintiff was previously advised, see Epperson v.
7 Foreign Ministry Affairs, No. 1:21–cv–00785–DAD–SKO, Doc. 4, Plaintiff cannot bring a class
8 action. Halet v. Wend Inv. Co., 672 F.2d 1305, 1308 (9th Cir. 1982) (party must assert [his] own
9 rights not those of third parties) (citing Duke Power Co. v. Carolina Environmental Study Group,
10 438 U.S. 59, 80 (1978)). Plaintiff is a non-lawyer proceeding without counsel. It is well
11 established that a layperson cannot ordinarily represent the interests of a class. See White v.
12 Geren, 310 F. App’x 159, 160 (9th Cir. 2009) (upholding dismissal of class action claims because
13 Plaintiff, as a pro se litigant, was not able to act as an adequate class representative) (citing Fed.
14 R. Civ. P. 23(a)(4) (requiring that class representative be able “to fairly and adequately protect the
15 interests of the class”); McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966) (lay person
16 lacks authority to appear as an attorney for others)).
17 “[C]ourts have routinely adhered to the general rule prohibiting pro se plaintiffs from
18 pursuing claims on behalf of others.” Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir.
19 2008). It does not appear from the face of the complaint that the statutory exception to this rule
20 permitting Plaintiff to prosecute an action on behalf of others is present. See id. at 664 n.6.
21 Plaintiff’s privilege to appear in propria persona is a “privilege [that] is personal to him [and] [h]e
22 has no authority to appear as an attorney for others than himself.” McShane, 366 F.2d at 288.
23 Therefore, unless Plaintiff can provide facts demonstrating he is statutorily authorized to pursue a
24 claim on behalf of a class, Plaintiff must amend his complaint to proceed as an individual litigant.
25 C. Legal Standards
26 In the event Plaintiff amends his complaint, the Court provides the following legal
27 standards that may be relevant to his action:
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1 1. Title VII
2 Title VII makes it unlawful for employers, employment agencies, and labor organizations
3 to discriminate against an individual based on the individual's race, color, religion, sex, or
4 national origin. 42 U.S.C. § 2000e-2(a)–(c). To establish a prima facie case of intentional
5 discrimination (known as “disparate treatment”) under Title VII, a plaintiff must show that: “(1)
6 he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an
7 adverse employment action; and (4) similarly situated individuals outside his protected class were
8 treated more favorably, or other circumstances surrounding the adverse employment action give
9 rise to an inference of discrimination.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th
10 Cir. 2004). While a plaintiff is not required to plead a prima facie case at the screening stage,
11 courts may review the allegations in light of the prima facie elements to determine whether a
12 plaintiff either sufficiently pleads an element of the prima facie case or provides enough factual
13 allegations that can lead the court to plausibly infer each element of the prima facie case. Thomas
14 v. Sec’y of The United States Dep’t of Veterans Affs., No. CV2102433JAKRAO, 2021 WL
15 2593643, at *3 (C.D. Cal. May 19, 2021), report and recommendation adopted, 2021 WL
16 2590160 (C.D. Cal. June 23, 2021) (internal citations omitted).
17 2. Rehabilitation Act
18 The Rehabilitation Act of 1973 was “amended to provide more comprehensive protection
19 for [people with disabilities] subjected to discriminatory treatment,” including by extending “the
20 rights and remedies available under Title VII of the Civil Rights Act of 1964” to people with
21 disabilities. Boyd v. U.S. Postal Service, 752 F.2d 410, 412 (9th Cir. 1985). To state a prima
22 facie case under the Rehabilitation Act, a plaintiff must demonstrate that (1) he is a person with a
23 disability, (2) who is otherwise qualified for the position, and (3) suffered discrimination because
24 of his disability. Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007)
25 D. Leave to Amend
26 The Court has screened Plaintiff’s complaint and finds that it fails to state any cognizable
27 claims. Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “the court should freely
28 give leave [to amend] when justice so requires.” Accordingly, the Court will provide Plaintiff
1 with time to file an amended complaint, so Plaintiff can provide additional factual allegations.
2 Lopez, 203 F.3d at 1126–30.
3 Plaintiff is granted leave to file an amended complaint within thirty days. If Plaintiff
4 chooses to amend his complaint, he must clearly state in the amended complaint his legal claims,
5 identify which defendant the claim is against, and allege facts that support and show that the
6 specific defendant engaged in conduct asserted as the legal basis for the claim. Fed. R. Civ. P.
7 8(a); Iqbal, 556 U.S. at 678; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff
8 should note that although he has been given the opportunity to amend, it is not for the purpose of
9 changing the nature of this suit or adding unrelated claims. George v. Smith, 507 F.3d 605, 607
10 (7th Cir. 2007) (no “buckshot” complaints).
11 Plaintiff is advised that an amended complaint supersedes the original complaint, Lacey v.
12 Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete in
13 itself without reference to the prior or superseded pleading. See E.D. Cal. L.R. 220. Therefore, in
14 an amended complaint, as in an original complaint, each claim and the involvement of each
15 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly
16 titled “First Amended Complaint,” refer to the appropriate case number, and be an original signed
17 under penalty of perjury.
18 Plaintiff has a choice on how to proceed. Plaintiff may file an amended complaint if he
19 believes that additional true factual allegations would state cognizable claims. If Plaintiff files an
20 amended complaint, the Court will screen that complaint in due course. Alternatively, Plaintiff
21 may choose to stand on his complaint subject to the Court issuing findings and recommendations
22 to a district judge consistent with this order.
23 IV. ORDER
24 Based on the foregoing, IT IS ORDERED that:
25 1. Within thirty (30) days from the date of service of this order, Plaintiff shall either:
26 a. File a First Amended Complaint; or
27 b. Notify the Court in writing that he wants to stand on this complaint;
28 2. If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the
1 amended complaint “First Amended Complaint” and refer to case number 1:22-cv-
2 00855-SKO; and
3 3. Failure to comply with this order may result in the dismissal of this action.
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IT IS SO ORDERED.
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6 Dated: September 8, 2022 /s/ Sheila K. Oberto .
UNITED STATES MAGISTRATE JUDGE
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