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Simmons v. Fallin

United States District Court, W.D. Oklahoma

December 27, 2017

GLYNN SIMMONS, et al., Plaintiff,
v.
MARY FALLIN, et al., Defendants.

          ORDER

          SCOTT L. PALK, UNITED STATES DISTRICT JUDGE.

         Before the Court is the Report and Recommendation [Doc. No. 23] of United States Magistrate Judge Shon Erwin pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Judge Erwin recommends that the Court: (1) dismiss, without prejudice, all Plaintiffs, with the exception of Plaintiff Simmons, on grounds of infeasible joinder; (2) order Plaintiff Simmons to file an amended complaint, asserting only claims specific to him; and (3) deny certain applications for joinder pending at the time the Report and Recommendation was entered.[1]

         For the reasons set forth below, the Report and Recommendation is adopted, in part. The Court finds the Complaint should be dismissed without prejudice to refiling on the following grounds: (1) joinder is not feasible as to Plaintiffs, at least seven of whom are incarcerated individuals[2]; (2) Plaintiff, the All In One Project, a non-profit entity, is not represented by counsel and, therefore, cannot proceed in this action; and (3) Plaintiff Gwendolyn Fields, a pro se individual, lacks standing to proceed, to the extent she purports to bring individual claims.

         I. Procedural History and Plaintiffs' Pro Se Representation

         Judge Erwin entered the Report and Recommendation on September 22, 2017. At that time, Plaintiffs were not represented by counsel. However, on that same date, Plaintiff Gwendolyn Fields moved for appointment of counsel and appointment of a special master. Ms. Fields signed the motion as “Gwendolyn Fields, Pro Se.” See Motion [Doc. No. 25]. And again, on October 3, 2017, Plaintiff Gwendolyn Fields again moved for appointment of counsel and also moved for class certification. See Plaintiffs' Motion for Certification as a Class Action and Appointment of Counsel [Doc. No. 37]. Ms. Fields signed this motion as “Gwendolyn Fields, Lead Organizer, All In One Project.”

         Then, on October 10, 2017, attorney Max Hellman entered an appearance on behalf of all Plaintiffs. See Entry of Appearance [Doc. No. 45]. Shortly thereafter, on October 26, 2017, Mr. Hellman filed a Motion to Withdraw [Doc. No. 66], notifying the Court that Plaintiffs had terminated him as their counsel and had requested that he file a motion to withdraw.[3] On December 4, 2017, Judge Erwin granted Mr. Hellman's Motion. See Order [Doc. No. 76].

         Also, on October 26, 2017, the same date that Mr. Hellman moved to withdraw, Ms. Fields objected to the Report and Recommendation. See Objection [Doc. No. 64]. Ms. Fields signed the Objection as “Gwendolyn M. Fields, Plaintiff Pro se” and as “Lead Organizer” of the All In One Project. See id. at 7. In the Objection, Ms. Fields represents that “Plaintiffs have mailed and are mailing notarized Limited Power of Attorney documents to the court to facilitate the request that All In One proceed as their representative.” See id. at 4 n. 1.[4]

         Most recently, on December 18, 2017, attorney Rand C. Eddy entered an appearance in this action. See Entry of Appearance [Doc. No. 78]. That filing expressly states that Mr. Eddy enters his appearance as counsel solely for Plaintiff Glynn Simmons. See id. To date, Mr. Eddy has submitted no other filings in this case.

         In addition to these filings, multiple prisoners have submitted “Applications” purporting to request joinder in this case. The Applications are virtually identical and in wholly conclusory fashion state: “[t]he relief sought in this case will affect Petitioner [sic] in the same ways that it affects Plaintiffs.” See, e.g., Application [Doc. No. 26]. Multiple prisoners have also filed “Notices of Interested Party, ” The Notices are also virtually identical to one another and similarly state in wholly conclusory fashion: “I am writing and requesting to be added as an ‘Interested Party' in support of ‘Class' certification in . . . Case No. CIV-17-908, filed in this Court.” See, e.g., Notice [Doc. No. 63].

         II. Discussion

         A. Gwendolyn Fields and the All In One Project

         The record before the Court demonstrates that this lawsuit has primarily been engineered by Ms. Fields as “lead organizer” of the non-profit entity, the All In One Project. The All In One Project is not currently represented by counsel. Nor has any licensed attorney submitted any filings on behalf of the All In One Project other than Mr. Hellman's Entry of Appearance and Motion to Withdraw, filed almost immediately after he entered his appearance.

         In the filings with this Court, Plaintiffs affirmatively represent that Ms. Fields is not a licensed attorney. See, e.g., Affidavit and Power of Attorney [Doc. No. 73-1] at 1, ¶ 7 (“I understand that Gwendolyn Fields is not licensed to practice law in the State of Oklahoma or any other State or Federal jurisdiction.”). Ms. Fields also affirmatively represents that the All In One Project is “duly registered with the State of Oklahoma as a non-profit entity, and is a 501(c)(3) organization.” See Notice [Doc. No. 36] at 1, ¶ 4. Ms. Fields further represents that the All In One Project paid the $400 filing fee. Id., ¶ 1. Ms. Fields is not an incarcerated individual, but appears in this litigation as the “Lead Organizer” of the All In One Project. See id., ¶ 2.[5]

         It is well-settled that an individual, who is not an attorney admitted to practice law, is unauthorized to represent another person or entity. See Fymbo v. State Farm Fire and Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000) (“A litigant may bring his own claims to federal court without counsel, but not the claims of others.”); see also 28 U.S.C. § 1654. In this same vein, a non-profit organization may only appear through a licensed attorney. Nato Indian Nation v. State of Utah, 76 F. App'x 854, 856 (10th Cir. 2003) (“Individuals may appear in court pro se, but a corporation, other business entity, or non-profit organization may only appear through a licensed attorney.”) (citations omitted)); see also LCvR 17.1 (“Parties who are not natural persons may not appear pro se.”). Moreover, “[a] power of attorney may not be used to circumvent prohibitions on the unauthorized practice of law.” Brown v. Peter Francis Jude Beagle Law Office, No. 08-3311-SAC, ...


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