Mathison v. Shannon

• Court: District Court, E.D. California
• Decided: April 19, 2024
• Docket: 1:24-cv-00427
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 MICHAEL WAYNE MATHISON, Case No. 1:24-cv-00427-SAB

12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 13 v. ACTION; DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS 14 ZACHARY SHANNON, et al., ORDER DIRECTING CLERK OF THE 15 Defendants. COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE 16 (ECF Nos. 1, 2) 17 OBJECTIONS DUE WITHIN THIRTY 18 DAYS 19 On March 29, 2024, a complaint and application to proceed in forma pauperis were filed 20 naming Michael Wayne Mathison as the Plaintiff. (ECF Nos. 1, 2.) Both the complaint and 21 application to proceed in forma pauperis were signed by “Raquel Hernandez POA Behalf of 22 Michael Mathison.” (ECF No. 1 at 10; ECF No. 2 at 2.) A Durable Power of Attorney form is 23 attached to the complaint which states Michael Wayne Mathison, a prisoner at Wasco State 24 Prison, appointed Raquel Hernandez, an individual that possesses a California driver’s license 25 and resides in Selma, California, as his attorney-in-fact. (ECF No. 1 at 14-16.) 26 There is no indication in the form prisoner complaint, the documents attached thereto, or 27 1 the application to proceed in forma pauperis that Ms. Hernandez is an attorney.1 It is well- 2 settled in the Ninth Circuit that a non-lawyer may appear in propria persona on his own behalf 3 but has no authority to appear as an attorney for anyone other than himself. Johns v. County of 4 San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (citing C.E. Pope Equity Trust v. United States, 5 818 F.2d 696, 697 (9th Cir. 1987)). A general power of attorney does not confer power to a non- 6 licensed individual to represent another in court. Id. Rather, “[a] power of attorney allows 7 Person A to do on behalf of Person B matters for which an attorney's license is not required. 8 Person A may sign checks or loan documents, for example, but may not provide legal 9 representation if not licensed to practice law.” Malinay v. Nishimura, No. CIV. 13-00372 SOM, 10 2013 WL 4240460, at *1 (D. Haw. Aug. 14, 2013). 11 In short, an attorney-in-fact is not a licensed attorney at law that may appear on behalf of 12 another in this Court. See also E.D. Cal. L.R. 183(a) (requiring that any individual who is 13 representing himself without an attorney must appear personally or by courtesy appearance by 14 another attorney admitted to the Bar of this Court and may not delegate that duty to any other 15 individual, including a spouse). Unless Ms. Hernandez is an attorney, she may not sign 16 pleadings on his behalf. Under Federal Rule of Civil Procedure 11(a), “[e]very pleading, written 17 motion, and other paper must be signed by at least one attorney of record in the attorney's 18 name—or by a party personally if the party is unrepresented.” Because Ms. Hernandez is not 19 authorized to represent Mr. Mathison in this Court—including signing any pleadings or papers 20 on his behalf—the Court must recommend the complaint be dismissed without prejudice and the 21 application to proceed in forma pauperis be denied without prejudice. 22 However, “[a] pro se litigant must be given leave to amend his or her complaint, and 23 some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint 24 could not be cured by amendment.” Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 25

1 The Court notes no individual named “Raquel Hernandez” is admitted to practice in the Eastern District of 26 California. Further, given Ms. Hernandez’s California driver’s license and California address, the Court notes no individual named “Raquel Hernandez” is a member of the California State Bar. See Silvester v. Harris, No. 1:11- 27 CV-2137 AWI SAB, 2014 WL 7239371, *6 n.4, 5, 7, 9 (E.D. Cal. Dec. 17, 2014) (taking judicial notice of attorney information provided on the State Bar of California's website and noting that under Federal Rule of Evidence 201, 1 | Because Mr. Mathison may choose to proceed in this matter pro se by signing and filing an 2 | amended complaint on his own behalf or, alternatively, by representation through a licensed 3 | attorney who files an amended complaint on his behalf, the Court recommends dismissal with 4 | leave to amend. 5 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that: 6 1. Plaintiff's application to proceed in forma pauperis (ECF No. 2) be DENIED 7 without prejudice; and 8 2. The complaint filed on March 29, 2024 (ECF No. 1) be dismissed with leave to 9 amend. 10 These findings and recommendations are submitted to the district judge assigned to this 11 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30) 12 | days of service of these recommendations, the parties may file written objections to the findings 13 | and recommendations with the Court. Such a document should be captioned “Objections to 14 | Magistrate Judge’s Findings and Recommendations.” The District Judge will review the 15 | Magistrate Judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The 16 | parties are advised that failure to file objections within the specified time may 17 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 18 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 IT IS FURTHER ORDERED that the Clerk of the Court is DIRECTED to randomly 20 | assign this matter to a District Judge. 21 IT IS SO ORDERED. DAM Le 23 | Dated: _April 18, 2024 _ ef UNITED STATES MAGISTRATE JUDGE

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