The Honorable Barbara J. Rothstein 1
5 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 ALVIN HEGGE, et al., 8 Plaintiffs, 9 Civil Action No. 3:20-cv-06170-BJR-MLP v. 10
11 ORDER ADOPTING REPORT AND JAY INSLEE, et al., RECOMMENDATION 12
Defendants. 13
15 I. INTRODUCTION 16 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 17 Michelle L. Peterson. The R&R recommends that all claims except for those of plaintiff Alvin 18 19 Hegge be dismissed for failure to prosecute. The R&R further recommends allowing plaintiff 20 Hegge’s claims to proceed, provided his complaint is amended to reflect only the claims pertinent 21 to him. 22 Having reviewed the R&R, the objections thereto, the relevant legal authority, and the 23 record of the case, the Court will adopt the R&R. 24 II. BACKGROUND 25 Plaintiffs are current and former prisoners at Stafford Creek Correctional Center (“SCCC”)
1 in Aberdeen, Washington. Dkt. 21 at 1. Plaintiffs filed a civil rights action under 42 U.S.C. §§ 1 1983, 1985, and 1986, alleging that the conditions of their confinement at SCCC violated their 2 3 constitutional rights. Dkt. 21 at 3. The complaint alleges the use of an unsanitary and toxic 4 kitchenware cleaning process, deliberate indifference of SCCC staff to Plaintiffs’ safety during the 5 COVID-19 pandemic, and retaliation for their attempts to pursue legal action. Dkt. 21 at 3-4. 6 Plaintiffs sought to certify this action as a class action under Fed. R. Civ. P. 23(a), with all 7 litigants proceeding pro se and plaintiff Hegge serving as the class representative.1 Dkt. 1 at 4-5, 8 29-30. Defendants in this case include Governor Jay Inslee, Attorney General Robert Ferguson, 9 various other state and local officials, and members of the SCCC staff. Id. at 1. Plaintiffs also 10 11 claim that Magistrate Judge J. Richard Creatura and Deputy Clerk Tyler Campbell failed to prevent 12 the wrongs of the above-listed defendants by returning a check for the filing fee sent by plaintiff 13 Hegge. Dkt. 21 at 3-4. 14 On February 22, 2021, Magistrate Judge Peterson issued an order to show cause directing 15 Plaintiffs to demonstrate why all plaintiffs except for plaintiff Hegge should not be dismissed for 16 failure to prosecute based on their lack of individual participation in the case. Dkt. 16. Among 17 18 other things, the order instructed the putative plaintiffs to file a signed response indicating that 19 they wished to participate in this action. Id. at 8. When no plaintiff other than plaintiff Hegge 20 responded, Magistrate Judge Peterson issued an R&R recommending that the putative plaintiffs 21 be dismissed without prejudice for failure to prosecute. Dkt. 21 at 7. Plaintiff Hegge filed 22 objections to the R&R on July 7, 2021. Dkt. 26. 23 24
1 The 18 prisoners plaintiff Hegge seeks to represent are referred to as the “putative plaintiffs” in this order. 2 III. DISCUSSION 1 When a party properly files specific written objections to an R&R, the district court 2 3 reviews the Magistrate Judge’s findings de novo. United States v. Raddatz, 447 U.S. 667, 673 4 (1980); Fed. R. Civ. P. 72(b). The Court may accept, reject, or modify, in whole or in part, the 5 findings and recommendations made by the Magistrate Judge. Id. at 673-74. Pro se filings are 6 held to a “less stringent standard than formal pleadings drafted by lawyers” and are thus liberally 7 construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 8 106 (1976)). 9 The issue before the Court is whether this case can be maintained as a class or joint 10 11 action or if all plaintiffs except plaintiff Hegge should be dismissed. Magistrate Judge 12 Peterson’s order to show cause noted that Plaintiffs were improperly seeking to proceed as a 13 class under Federal Rule of Civil Procedure 23(c), with plaintiff Hegge serving as representative. 14 Dkt. 16 at 3. Magistrate Judge Peterson then analyzed whether the putative plaintiffs could be 15 joined under Rule 20 and found that, “though there may be common issues of fact underlying 16 some of the claims, Plaintiffs’ individual claims will also involve independent factual allegations 17 which would require separate and distinct evidence, evaluations, and analyses.” Id. at 5. 18 19 Magistrate Judge Peterson further stated that, even if joinder were proper, all Plaintiffs would 20 need to read, approve, and sign each joint filing—a requirement that presents numerous logistical 21 problems for prisoners and with which Plaintiffs have not complied. Id. at 4. In her R&R, 22 Magistrate Judge Peterson reiterated these deficiencies and emphasized that none of the plaintiffs 23 aside from plaintiff Hegge had responded to the order to show cause. See Dkt. 21. 24 As an initial matter, Magistrate Judge Peterson is correct that Plaintiffs cannot proceed as 25 a class and plaintiff Hegge cannot serve as representative or formal legal counsel for his fellow 3 prisoners.2 See Russell v. United States, 308 F.2d 98 (9th Cir. 1962); Oxendine v. Williams, 509 1 F.2d 1405, 1407 (4th Cir. 1975); see also Abel v. Alameda Cty., 2007 WL 3022252, at *1 (N.D. 2 3 Cal. Oct. 13, 2007) (“Pro se prisoner plaintiffs may not bring class actions.”). 4 Furthermore, as Magistrate Judge Peterson noted, “[b]ecause [pro se] [p]laintiffs cannot 5 represent others’ legal interests . . . , all [Plaintiffs] must sign the complaint and any . . . joint 6 filings.” Dkt. 16 at 4 (emphasis in original) (citing Fed. R. Civ. P. 11). Plaintiffs have not done 7 so. The response to the order to show cause was signed only by plaintiff Hegge and thus cannot 8 serve as a joint filing. Dkt. 20. No other plaintiff filed a separate response, despite Magistrate 9 Judge Peterson’s order explicitly warning them that if they did not respond, it would represent a 10 11 failure to prosecute. Dkt. 16 at 8. 12 Additionally, plaintiff Hegge asserts that the Court lacked jurisdiction to dismiss any 13 parties from this action because service had not been ordered on Defendants. See, e.g., Dkt. 26 14 at 4-8. This assertion is groundless. The complaint names nearly 50 Defendants, including 15 Governor Inslee and Magistrate Judge Creatura. Dkt. 1 at 1-2. The complaint fails to explain 16 who many of the other defendants are, let alone describe the role they played in the alleged 17 18 constitutional violations. See id. at 2. 19 The Prison Litigation Reform Act of 1996 (“PLRA”) requires the Court to screen 20 complaints brought by prisoners against a government entity, officer, or employee. 28 U.S.C. § 21 1915(a); see Jones v. Dep’t of Corrs., No. C21-1334-BJR-SKV, (W.D. Wash. Nov. 2, 2021). 22 23
25 2 Plaintiff Hegge’s argument that “Magistrate Peterson is attempting to confuse a ‘class action’ under [Rule] 23(c) which requires appointment of counsel, and [Rule] 23(a) [which] does not require representation on behalf of other plaintiff(s), but only a joint effort in the litigation” is unsupported and inaccurate. Dkt. 26 at 20.
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The Honorable Barbara J. Rothstein 1
5 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 ALVIN HEGGE, et al., 8 Plaintiffs, 9 Civil Action No. 3:20-cv-06170-BJR-MLP v. 10
11 ORDER ADOPTING REPORT AND JAY INSLEE, et al., RECOMMENDATION 12
Defendants. 13
15 I. INTRODUCTION 16 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 17 Michelle L. Peterson. The R&R recommends that all claims except for those of plaintiff Alvin 18 19 Hegge be dismissed for failure to prosecute. The R&R further recommends allowing plaintiff 20 Hegge’s claims to proceed, provided his complaint is amended to reflect only the claims pertinent 21 to him. 22 Having reviewed the R&R, the objections thereto, the relevant legal authority, and the 23 record of the case, the Court will adopt the R&R. 24 II. BACKGROUND 25 Plaintiffs are current and former prisoners at Stafford Creek Correctional Center (“SCCC”)
1 in Aberdeen, Washington. Dkt. 21 at 1. Plaintiffs filed a civil rights action under 42 U.S.C. §§ 1 1983, 1985, and 1986, alleging that the conditions of their confinement at SCCC violated their 2 3 constitutional rights. Dkt. 21 at 3. The complaint alleges the use of an unsanitary and toxic 4 kitchenware cleaning process, deliberate indifference of SCCC staff to Plaintiffs’ safety during the 5 COVID-19 pandemic, and retaliation for their attempts to pursue legal action. Dkt. 21 at 3-4. 6 Plaintiffs sought to certify this action as a class action under Fed. R. Civ. P. 23(a), with all 7 litigants proceeding pro se and plaintiff Hegge serving as the class representative.1 Dkt. 1 at 4-5, 8 29-30. Defendants in this case include Governor Jay Inslee, Attorney General Robert Ferguson, 9 various other state and local officials, and members of the SCCC staff. Id. at 1. Plaintiffs also 10 11 claim that Magistrate Judge J. Richard Creatura and Deputy Clerk Tyler Campbell failed to prevent 12 the wrongs of the above-listed defendants by returning a check for the filing fee sent by plaintiff 13 Hegge. Dkt. 21 at 3-4. 14 On February 22, 2021, Magistrate Judge Peterson issued an order to show cause directing 15 Plaintiffs to demonstrate why all plaintiffs except for plaintiff Hegge should not be dismissed for 16 failure to prosecute based on their lack of individual participation in the case. Dkt. 16. Among 17 18 other things, the order instructed the putative plaintiffs to file a signed response indicating that 19 they wished to participate in this action. Id. at 8. When no plaintiff other than plaintiff Hegge 20 responded, Magistrate Judge Peterson issued an R&R recommending that the putative plaintiffs 21 be dismissed without prejudice for failure to prosecute. Dkt. 21 at 7. Plaintiff Hegge filed 22 objections to the R&R on July 7, 2021. Dkt. 26. 23 24
1 The 18 prisoners plaintiff Hegge seeks to represent are referred to as the “putative plaintiffs” in this order. 2 III. DISCUSSION 1 When a party properly files specific written objections to an R&R, the district court 2 3 reviews the Magistrate Judge’s findings de novo. United States v. Raddatz, 447 U.S. 667, 673 4 (1980); Fed. R. Civ. P. 72(b). The Court may accept, reject, or modify, in whole or in part, the 5 findings and recommendations made by the Magistrate Judge. Id. at 673-74. Pro se filings are 6 held to a “less stringent standard than formal pleadings drafted by lawyers” and are thus liberally 7 construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 8 106 (1976)). 9 The issue before the Court is whether this case can be maintained as a class or joint 10 11 action or if all plaintiffs except plaintiff Hegge should be dismissed. Magistrate Judge 12 Peterson’s order to show cause noted that Plaintiffs were improperly seeking to proceed as a 13 class under Federal Rule of Civil Procedure 23(c), with plaintiff Hegge serving as representative. 14 Dkt. 16 at 3. Magistrate Judge Peterson then analyzed whether the putative plaintiffs could be 15 joined under Rule 20 and found that, “though there may be common issues of fact underlying 16 some of the claims, Plaintiffs’ individual claims will also involve independent factual allegations 17 which would require separate and distinct evidence, evaluations, and analyses.” Id. at 5. 18 19 Magistrate Judge Peterson further stated that, even if joinder were proper, all Plaintiffs would 20 need to read, approve, and sign each joint filing—a requirement that presents numerous logistical 21 problems for prisoners and with which Plaintiffs have not complied. Id. at 4. In her R&R, 22 Magistrate Judge Peterson reiterated these deficiencies and emphasized that none of the plaintiffs 23 aside from plaintiff Hegge had responded to the order to show cause. See Dkt. 21. 24 As an initial matter, Magistrate Judge Peterson is correct that Plaintiffs cannot proceed as 25 a class and plaintiff Hegge cannot serve as representative or formal legal counsel for his fellow 3 prisoners.2 See Russell v. United States, 308 F.2d 98 (9th Cir. 1962); Oxendine v. Williams, 509 1 F.2d 1405, 1407 (4th Cir. 1975); see also Abel v. Alameda Cty., 2007 WL 3022252, at *1 (N.D. 2 3 Cal. Oct. 13, 2007) (“Pro se prisoner plaintiffs may not bring class actions.”). 4 Furthermore, as Magistrate Judge Peterson noted, “[b]ecause [pro se] [p]laintiffs cannot 5 represent others’ legal interests . . . , all [Plaintiffs] must sign the complaint and any . . . joint 6 filings.” Dkt. 16 at 4 (emphasis in original) (citing Fed. R. Civ. P. 11). Plaintiffs have not done 7 so. The response to the order to show cause was signed only by plaintiff Hegge and thus cannot 8 serve as a joint filing. Dkt. 20. No other plaintiff filed a separate response, despite Magistrate 9 Judge Peterson’s order explicitly warning them that if they did not respond, it would represent a 10 11 failure to prosecute. Dkt. 16 at 8. 12 Additionally, plaintiff Hegge asserts that the Court lacked jurisdiction to dismiss any 13 parties from this action because service had not been ordered on Defendants. See, e.g., Dkt. 26 14 at 4-8. This assertion is groundless. The complaint names nearly 50 Defendants, including 15 Governor Inslee and Magistrate Judge Creatura. Dkt. 1 at 1-2. The complaint fails to explain 16 who many of the other defendants are, let alone describe the role they played in the alleged 17 18 constitutional violations. See id. at 2. 19 The Prison Litigation Reform Act of 1996 (“PLRA”) requires the Court to screen 20 complaints brought by prisoners against a government entity, officer, or employee. 28 U.S.C. § 21 1915(a); see Jones v. Dep’t of Corrs., No. C21-1334-BJR-SKV, (W.D. Wash. Nov. 2, 2021). 22 23
25 2 Plaintiff Hegge’s argument that “Magistrate Peterson is attempting to confuse a ‘class action’ under [Rule] 23(c) which requires appointment of counsel, and [Rule] 23(a) [which] does not require representation on behalf of other plaintiff(s), but only a joint effort in the litigation” is unsupported and inaccurate. Dkt. 26 at 20. 4 Courts must dismiss any complaint if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from 3 || such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2); see Jones, No. C21-1334-BJR-SKV, 4 *4. Rule 8 of the Federal Rules of Civil Procedure requires that a complaint give a defendant 5 || sufficient notice of the claim and the grounds upon which it rests. See Conley v. Gibson, 355 6 U.S. 41, 47 (1957). Plaintiff Hegge’s complaint does not meet the Rule 8 standard. Before service is ordered, plaintiff Hegge must either amend his complaint to include specific allegations against each
10 defendant or remove defendants that have no clear connection to the conduct alleged in the 11 || complaint. 12 In summary, the Court adopts the R&R’s recommendation that all plaintiffs except for 13 plaintiff Hegge be dismissed without prejudice for failure to prosecute. Plaintiff Hegge’s action 4 may proceed, but he must amend his complaint to reflect only his individual allegations and to include specific allegations against those defendants against whom he wants to proceed.
7 IV. CONCLUSION 18 For the foregoing reasons, the Court hereby adopts the R&R (Dkt. 21). All plaintiffs except 19 || Alvin Hegge are dismissed without prejudice. If any of these plaintiffs wish to pursue their claims, 20 || they may do so in separate, individual actions. Plaintiff Hegge is ordered to amend his complaint 21 || as described herein no later than 30 days from the date of this order. 22 DATED this 7th day of February, 2022. 23 24 foros LMeketein 95 BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE