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NA 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

James Strouse, et al., 

Plaintiffs, 

v. 

Unknown Madrid, et al., 

Defendants. 

No. CV 17-00471-TUC-RCC 

ORDER 

Plaintiffs James Strouse, Ronald Boyjin, Orlando Vasquez, Darrick Boroczk,1

Arnaldo Serrano,2

 and John Does 2-200, who were apparently all confined in the United 

States Penitentiary-Tucson, have filed a pro se civil rights Complaint (Doc. 1) pursuant to 

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 

(1971). Plaintiffs Strouse, Boyjin, and Vasquez also filed a document seeking service of 

subpoenas and seeking leave to proceed in forma pauperis3

 (“Motion for Service and to 

Proceed In Forma Pauperis”) (Doc. 2). On September 29, October 4, October 13, and 

November 30, 2017, Plaintiffs filed Motions to Supplement the Complaint (Docs. 4, 5, 

10, 15, 26, 27). On September 29, October 12, and November 16, 2017 and January 2, 

 

1

 In an October 13, 2017 Motion to Supplement, Plaintiffs appear to seek to add Boroczk as a Plaintiff in this action. 

2

 In a November 30, 2017 “Petition for Joinder of ‘Plaintiff,’” Plaintiffs appear to seek to add Serrano as a Plaintiff in this action. 

3

 It appears that only Plaintiff Strouse has requested leave to proceed in forma pauperis. 

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2018, Plaintiffs filed Motions for Preliminary Injunctions (Docs. 7, 12, 24, 30).4 On 

September 29, 2017, Plaintiffs filed an Emergency Motion (Doc. 8), and Plaintiff Strouse 

filed a Motion to Proceed In Forma Pauperis (Doc. 9). On October 12, 2017, Plaintiffs 

filed a Motion to Preserve Evidence (Doc. 11); however, the Motion to Preserve 

Evidence is only signed by Plaintiff Strouse. On October 12, 2017, Plaintiff Strouse filed 

a Motion to Order the Bureau of Prison to Provide an Inmate Trust Account (Doc. 13). 

On October 26, 2017, Plaintiff Strouse filed a Motion for Service of Subpoenas (Doc. 

18). On October 30, 2017, Plaintiff Strouse filed a Letter (Doc. 21). On October 31, 

2017, Plaintiff Strouse filed an Application to Proceed In Forma Pauperis (Doc. 19). On 

November 30, 2017, Plaintiffs filed a Motion for Order to Show Cause (Doc. 25.) On 

January 8, 2018, Plaintiff Strouse filed a Petition to Dismiss Incident Report (Doc. 31) 

and a Petition to Correct Declaration (Doc 32). On February 5, 2018, Plaintiff Strouse 

filed a Motion to Seize and Desist (Doc. 34). On February 12, 2018, Plaintiff sent a letter 

addressed to the undersigned (Doc. 35).5

 The Court will dismiss this action and terminate 

the motions. 

I. Class Action 

 Plaintiff Strouse purports to file this action as a class action. One prerequisite to 

maintaining a class action is that the “representative parties will fairly and adequately 

protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). It follows that a class action 

may not be certified where the representative parties are without counsel. See McShane 

v. United States, 366 F.2d 286, 288 (9th Cir. 1966) (non-lawyer had no authority to 

appear as an attorney for other persons in a purported class action); C.E. Pope Equity 

Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (while a non-attorney may 

 

4

 It appears that Docs. 12, 24, and 30 were filed only by Plaintiff Strouse. 

5

 It is improper for a party to communicate directly with court personnel. Simply mailing a letter to the Clerk of Court, the judge, or any court personnel is unacceptable. Any request for action by the Court must be in the form of a motion that complies with the Rules of Practice of the United States District Court for the District of Arizona (the 

Local Rules). Any future letters directed to the Clerk of Court, the judge, or any court personnel will be stricken from the record and will be returned to Plaintiff. 

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represent himself, he has no authority to appear as an attorney for others); Oxendine v. 

Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (plain error to permit an inmate 

proceeding pro se to represent fellow inmates in a class action). “This rule is an 

outgrowth not only of the belief that a layman, untutored in the law, cannot ‘adequately 

represent’ the interests of the members of the ‘class,’ but also out of the long-standing 

general prohibition against even attorneys acting as both class representative and counsel 

for the class.” Huddleston v. Duckworth, 97 F.R.D. 512, 514 (N.D. Ind. 1983). 

Accordingly, before deciding whether this matter can proceed as a class action, the Court 

must first determine whether this is a case that merits the appointment of counsel. 

 There is no constitutional right to the appointment of counsel in a civil case. See

Ivey v. Board of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In 

proceedings in forma pauperis, the court may request an attorney to represent any person 

unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C. 

§ 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v. 

Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to 

exceptional circumstances requires an evaluation of the likelihood of success on the 

merits as well as the ability of Plaintiff to articulate his claims pro se in light of the 

complexity of the legal issue involved. Id. “Neither of these factors is dispositive and 

both must be viewed together before reaching a decision.” Id. (quoting Wilborn v. 

Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 

 Having considered both elements, it does not appear at this time that exceptional 

circumstances are present that would require the appointment of counsel in this case. 

Plaintiffs are in no different position than many pro se prisoner litigants. In light of the 

this decision, the Court will not allow this action to proceed as a class action because 

Plaintiffs will not be able to fairly and adequately protect the interests of the class. See

Fed. R. Civ. P. 23(a)(4). 

. . . . 

. . . . 

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II. Severance of Action into Separate Actions 

 Generally, plaintiffs may join in one action if they assert any right to relief arising 

out of the same occurrence or series of occurrences and if any question of law or fact in 

common to all plaintiffs will arise in the action. Fed. R. Civ. P. 20. However, Rule 21 of 

the Federal Rules of Civil Procedure authorizes the Court to drop parties on just terms 

and sever claims. See Desert Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1375 

(9th Cir. 1980) (even if the specific requirements of Rule 20 may be satisfied, a trial court 

must examine other relevant factors to determine if joinder of a party will comport with 

principles of fundamental fairness). 

 Even if Plaintiffs in this action are properly joined, the Court has found that 

management of pro se multi-plaintiff inmate litigation presents significant burdens to 

both the parties and the Court. Plaintiffs are inmates proceeding pro se, and, although 

each Plaintiff may appear on his own behalf, neither may appear as an attorney for the 

other. Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997). Therefore, 

during the prosecution of this action, each Plaintiff would be required to sign and submit 

his own motions and notices related to his claims in the action, and all Plaintiffs would be 

required to individually sign any motion or notice filed on behalf of all Plaintiffs. 

However, because of security concerns related to inmate correspondence and face-to-face 

communications, Plaintiffs would have at best only a very limited opportunity to discuss 

case strategy, share discovery, or even provide each other copies of the motions and 

notices they file with the Court. Thus, continued administration of the lawsuit by the 

inmates is limited, if not virtually impossible, due to the regulation of inmate-to-inmate 

correspondence. Moreover, inmates are subject to transfer at any time to a facility other 

than the one they are incarcerated in at the time of the lawsuit.6

 

. . . . 

 

6

 In fact, on December 8, 2017, Plaintiff Vasquez filed a Notice of Change of Address (Doc. 28) informing the Court that he was transferred to the United States 

Penitentiary (USP)-Coleman II in Coleman, Florida, and on February 5, 2018, Plaintiff 

Strouse filed a Notice of Change of Address (Doc. 33) informing the Court that he was also transferred to USP-Coleman II. 

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 With these concerns in mind, the Court concludes that unitary adjudication of 

Plaintiffs’ claims would result in unfairness to Plaintiffs, Defendants, and the Court’s 

goals of achieving judicial economy and maintaining efficient control of the Court’s 

docket. Allowing each Plaintiff to proceed separately, however, would overcome the 

unfairness created by these circumstances. Therefore, the Court will sever this action 

into individual cases and a new case number will be assigned to each individually-named 

Plaintiff. The unnamed Defendants (Does 2-200) will be dismissed. 

 A copy of the Complaint and this Order will be placed in each new case, and a 

copy of Plaintiff Strouse’s Application to Proceed In Forma Pauperis (Doc. 9) will be 

placed in his new case. The rulings in this Order shall apply in each new case. The 

individual Plaintiffs must proceed independently from this point and will not be regarded 

as co-plaintiffs, except upon further order of the Court. 

III. Pending Motions 

Because the Court will sever this action into separate actions for each individual 

Plaintiff and because the motions do not pertain to all of the Plaintiffs, the Court will 

direct the Clerk of Court to terminate the pending motions. All further pleadings, 

motions or other papers submitted for filing by an individual Plaintiff in his separate case 

must be signed by the individual Plaintiff, or they will be stricken. 

IT IS ORDERED: 

 (1) Plaintiffs John Does 2-200 are dismissed. 

 (2) This case is severed into individual actions, one for each named Plaintiff, 

“Intervenor Plaintiff Darrick Boroczk,”and Plaintiff Serrano. The Clerk of Court must 

assign a new case number to each new individual action. 

 (3) The Clerk of Court must close this case (17-CV-00471-TUC-RCC), 

terminate the motions, and enter judgment accordingly. 

 (4) The Clerk of Court must file a copy of the present Complaint (Doc. 1) and 

this Order in each new case. The rulings in this Order shall apply in each new case. 

. . . . 

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 (5) The Clerk of Court must file a copy of Plaintiff Strouse’s Application to 

Proceed In Forma Pauperis (Doc. 9) in Plaintiff Strouse’s new case. 

 (6) The individual Plaintiffs must proceed independently from this point and 

will not be regarded as co-plaintiffs, except upon further order of the Court. All further 

pleadings, motions or other papers submitted for filing by an individual Plaintiff in his 

separate case must be signed by the individual Plaintiff, or they will be stricken. 

 (7) The Clerk of Court is directed to send any correspondence for Plaintiffs 

Vasquez and Strouse to their updated addresses at the United States PenitentiaryColeman II. 

 (8) Because the address of the United States Penitentiary-Tucson is the only 

address provided to the Court for the other Plaintiffs, the Clerk of Court is directed to use 

this address as the mailing address for Plaintiffs Boyajin, Boroczk, and Serrano when 

mailing a copy of this Order and the case-opening paperwork in the new actions. 

 Dated this 27th day of February, 2018. 

 

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