Mathison v. Shannon

Opinion

MICHAEL WAYNE MATHISON, 1:24-cv-00427-KES-SAB

Plaintiff, ORDER VACATING FINDINGS AND v. RECOMMENDATIONS (ECF No. 4)

ZACHARY SHANNON, et al., ORDER DISREGARDING DOCUMENT FILED BY NON-ATTORNEY ON Defendants. PLAINTIFF’S BEHALF (ECF No. 6)

ORDERING PLAINTIFF TO SUBMIT APPLICATION TO PROCEED IN FORMA PAUPERIS OR PAY FILING FEE WITHIN 45 DAYS

On March 29, 2024, a non-attorney signed and filed a complaint and application to proceed in forma pauperis on behalf of Plaintiff. (ECF No. 1.) On April 19, 2024, the Court issued findings and recommendations recommending that the action be dismissed because neither filing was signed by Plaintiff or an attorney. (ECF No. 4.) The Court afforded Plaintiff thirty days to file objections or, alternatively, to cure the deficiencies in his complaint. (Id. at 2.) On May 3, 2024, a notice was filed by Raquel Hernandez on behalf of Michael Wayne Mathison. (ECF No. 6.) As stated in the Court’s findings and recommendations, Ms. Hernandez is not an attorney, may not represent Plaintiff in this action, and may not sign any filings on Mr. Mathison’s behalf. (ECF No. 4 (citing Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (a non-lawyer may not represent anyone but himself or herself in court)).). The Court shall disregard the notice filed by Ms. Hernandez. / / / On May 8, 2024, Plaintiff filed a first amended complaint bearing his signature. (ECF No. 7.) Plaintiff also filed objections to the findings and recommendations. (Id. at 12.) Therein, Plaintiff stated he has appointed Ms. Hernandez as his power of attorney to take care of his legal or financial affairs by signing for him with his knowledge and authorization. (ECF No. 7 at 12.) Plaintiff confirms he will be proceeding pro se in this action and apologizes for the miscommunication. (Id.) As stated in the Court’s findings and recommendations, a non-attorney may not sign any document filed in this action on Plaintiff’s behalf, regardless of whether she has been appointed power of attorney or that she signs with Plaintiff’s knowledge or authorization. (ECF No. 4) See Fed. R. Civ. P. 11(a), (“[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name—or by a party personally if the party is unrepresented”) (emphasis added); see also E.D. Cal. L.R. 183(a) (requiring that any individual who is representing himself without an attorney must appear personally or by courtesy appearance by another attorney admitted to the Bar of this Court and may not delegate that duty to any other individual, including a spouse) (emphasis added). Plaintiff is cautioned that any further documents signed by Ms. Hernandez in this action will be disregarded. Turning to Plaintiff’s first amended complaint, Plaintiff is a state prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983. However, Plaintiff has not paid the $405.00 filing fee, or submitted an application to proceed in forma pauperis bearing his signature pursuant to 28 U.S.C. § 1915. The Court shall therefore order Plaintiff file an application to proceed in forma pauperis, or, alternatively, pay the filing fee in this action. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations issued on April 19, 2024 (ECF No. 4), are VACATED; 2. The notice signed by a non-attorney on Plaintiff’s behalf (ECF No. 6) is DISREGARDED; 3. The Clerk of the Court is DIRECTED to forward an in forma pauperis application to Plaintiff; 4. Within forty-five (45) days of the date of service of this order, Plaintiff shall submit an application to proceed in forma pauperis, completed and signed by Plaintiff, or in the alternative, pay the $405.00 filing fee for this action; 5. No requests for extension will be granted without a showing of good cause; and 6. Failure to comply with this order will result in dismissal of this action. IT IS SO ORDERED. DAA (e_ g | Dated: _May 10, 2024 __ ef UNITED STATES MAGISTRATE JUDGE