(PS) Roberts v. Sacramento Housing & Redevelopment Agency

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SYDNEY BROOKE ROBERTS and No. 2:22-cv-01699 DJC AC PS DAVID TYRONE SAMUEL, 12 Plaintiffs, 13 ORDER TO SHOW CAUSE v. 14 SACRAMENTO HOUSING AND 15 REDEVELOPMENT AGENCY, et al., 16 Defendants. 17 18 Plaintiffs are proceeding in this action pro se, and the matter was accordingly referred to 19 the undersigned by E.D. Cal. R. 302(c)(21). The operative complaint is the Third Amended 20 Complaint (ECF No. 11), filed November 15, 2022. See ECF No. 36. Portions of this complaint 21 have been dismissed, while others remain. Id. The undersigned has identified two remaining 22 problems with the status of some of the parties in this case. 23 A. The Minor Children Must be Removed as Plaintiffs 24 The operative complaint identifies four plaintiffs: David Tyrone Samuel, Sydney Brooke 25 Roberts, and two minor children: “AIMS” and “DAYS.” ECF No. 36 at 9. Although the initial 26 screening order in this case informed the adult plaintiffs that as pro se plaintiffs, they can 27 represent only themselves (ECF No. 3 at 4), and later Findings and Recommendations identify 28 plaintiffs as “two adult members of the same household,” (ECF No. 36 at 2), the minor children 1 || were never removed as plaintiffs in this action. “A pro se plaintiff can only ‘prosecute his own 2 || action in propria persona,’ and ‘has no authority to prosecute an action in federal court on behalf 3 | of others.’” United States ex rel. Welch v. My Left Foot Children’s Therapy, LLC, 871 F.3d 791, 4 | 800 (9th Cir. 2017) (quoting Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116, 1126 5 || (Oth Cir. 2007)). The Ninth Circuit has made clear “that a parent or guardian cannot bring an 6 || action on behalf of a minor child without retaining a lawyer.” Johns v. County of San Diego, 114 7 || F.3d 874, 877 (9th Cir. 1997). Thus, plaintiffs Samuel and Roberts cannot represent AIMS and 8 | DAYS, and unless an attorney is retained for the minors, the minors cannot be plaintiffs in this 9 || case. 10 B. Defendant Tyler Thao Has Not Been Served 11 There is no indication on the record that defendant Tyler Thao has been served in this 12 || case, even though the operative complaint was filed over 18 months ago on November 15, 2022. 13 || ECF No. 11. Per the Federal Rules of Civil Procedure, failure to complete service within 90 days 14 || may result in dismissal of a defendant. Fed. R. Civ. P. 4(m). The deadline for service has long 15 || since passed. Plaintiff Samuel appeared at a status conference in this case on April 17, 2024, and 16 || indicated that he was willing to dismiss defendant Thao without prejudice. Plaintiff Roberts has 17 || not spoken on the issue. 18 ORDER TO SHOW CAUSE 19 In accordance with the above, IT IS HEREBY ORDERED that plaintiffs must show cause 20 || in writing within 14 days why (1) the minor plaintiffs AIMS and DAYS should not be terminated 21 || from this case, and (2) why defendant Tyler Thao should not be dismissed without prejudice for 22 || failure of service. If plaintiffs fail to respond, the undersigned will recommend that defendant 23 || Thao be dismissed without prejudice, and that the minors DAYS and AIMS be terminated 24 || plaintiffs. 25 IT IS SO ORDERED. . ~ 26 || DATED: April 17, 2024 Mare ALLISON CLAIRE 27 UNITED STATES MAGISTRATE JUDGE 28