Unpublished Disposition, 880 F.2d 417 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 880 F.2d 417 (9th Cir. 1987)

Burton H. WOLFE, Plaintiff-Appellant,v.YELLOW CAB COOPERATIVE, INC.; Sedan Operators Cooperative,Inc., (dba Desoto Cab Company; Luxor Cab Company; TaxiService, Inc. (dba City Cab); San Francisco TaxicabAssociation; James Steele; Marvin Gralnick; Al Stone;William Lazar, Sr.; William Lazar, Jr.; James O'Connor;James J. Meyers, Jr., and Meyers, Merrill, Schultz & Wolds;Veterans Taxicab Company, Mary Speck; Emory Speck; DianneFeinstein; Quentin L. Kopp; Alfred J. Nelder; Louise H.Renne; Harry G. Britt; Willie B. Kennedy; Bill Maher;John L. Molinari; Wendy Nelder; Carol Ruth Silver; NancyG. Walker; Doris M. Ward; John Van De Kamp, AttorneyGeneral for the State of California; Al Weaver; C. RobertSimpson, Jr.; Miguel Estrada; Roger Liebich; Kaye Kiddoo;and Ronald Ronaldi, Defendants-Appellees.

No. 88-1629.

United States Court of Appeals, Ninth Circuit.

Submitted*  June 29, 1989.Decided July 18, 1989.

Before JAMES R. BROWNING, PREGERSON and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Appellant Burton Wolfe ("Wolfe") appeals pro se the district court's dismissal of his 132-page complaint against appellees Yellow Cab Cooperative, et al., ("Yellow Cab") after Wolfe failed to amend the complaint. Wolfe also alleges the district court erred in determining he was not an adequate class representative, in failing to appoint counsel to represent the class Wolfe attempted to represent, and in dismissing Wolfe's motion to disqualify the judge for personal bias. We affirm.

FACTS

Wolfe, a former taxi driver, filed a complaint pro se against Yellow Cab and several other taxicab companies, attorneys representing the cab companies, the City of San Francisco, the San Francisco Board of Supervisors, the State of California, numerous other named defendants, and Does 1-999, alleging constitutional violations arising out of the manner by which taxi drivers are classified for employment purposes. Wolfe asserts taxi companies are unconstitutionally depriving drivers of unemployment compensation, disability and other benefits by classifying them as "self-employed" instead of employees.

We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291.1 

ANALYSIS

Wolfe sought to represent a class he alleged consisted of "disenfranchised employee taxicab drivers" in the city and county of San Francisco. Complaint at 13. Under Fed. R. Civ. P. 23(a) (4), an action may not be certified as a class action unless it is shown that "the representative parties ... fairly and adequately protect the interests of the class." A decision to deny class certification is reviewed for abuse of discretion. Silas v. ILGWU Nat'l Retirement Fund, 783 F.2d 923, 926 (9th Cir. 1986); Fendler v. Westgate-California Corp., 527 F.2d 1168, 1179 (9th Cir. 1975).

Adequacy of representation depends on the qualifications of counsel for the class members and an absence of antagonism between the representative and the class. Re Northern Dist. of Cal., Dalkon Shield, 693 F.2d 847, 855 (9th Cir. 1982), cert. denied, 459 U.S. 1171 (1983). A plaintiff may represent himself in propria persona but may not represent a class in a class action. He has no authority to act as an attorney for others. McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966). The district court therefore did not abuse its discretion in refusing class certification.

B. Dismissal Following Failure to Amend Complaint

A court has discretion to dismiss an action pursuant to Fed. R. Civ. P. 41(b) for failure to comply with any order of the court. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). Dismissal for failure to file a timely amended complaint is reviewed for abuse of discretion, and this court will not overturn the district court's decision absent a " 'definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.' " Id. (quoting Schmidt v. Herrmann, 614 F.2d 1221, 1224 (9th Cir. 1980).

In reviewing Wolfe's dismissal we must keep in mind Wolfe's pro se status. Pro se pleadings are held to a less stringent standard than those prepared by a lawyer, and are liberally construed. Id. at 1137 (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980), Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986)).

A pleading must contain a short, plain statement of the claim showing the pleader is entitled to relief. Fed. R. Civ. P. 8(a); Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). A complaint which fails to comply with rules 8(a) and 8(e) may be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b). Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

Wolfe filed a 132-page complaint in the district court. Wolfe's complaint alleges a conspiracy between the taxicab companies and city, county, state and federal governments (although the United States is not included as a defendant) to deprive drivers of rights and benefits by classifying them as "self-employed" instead of as "employees." The complaint further purports to allege violations of 42 U.S.C. § 1983 for discrimination against drivers who were "disenfranchised" by the alleged conspiracy. Id. at 18. There are also numerous allegations of fraud by many defendants.

Wolfe's pleading does not meet the requirements of Rule 8. The allegations are conclusory, there is no plain or concise statement of the causes of action and the pleading gives no notice to defendants of what they must defend against because it fails to associate any specific facts or allegations with any specific defendants.

Before dismissing a plaintiff's action, a court must be certain that less drastic alternatives are unavailable. Eldridge, 832 F.2d at 1137; Nevijel, 651 F.2d at 672. A pro se plaintiff must be given leave to amend unless "it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' " Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)).

At the October 2 hearing, after questioning Wolfe at length to determine whether there was "some conceivable basis" for his individual claim, the court ruled sua sponte that the 132-page complaint violated the "shortness and simplicity" provisions of Fed. R. Civ. P. 8(a), (e), ordered the complaint dismissed without prejudice, and granted Wolfe leave to file an amended complaint by November 6, 1987.

When granting leave to amend, courts must provide pro se litigants with notice of the deficiencies in their complaints to ensure errors are not repeated in the amended pleadings. Noll, 809 F.2d at 1448. The court gave Wolfe detailed instructions explaining how to redraft his amended complaint to comply with Fed. R. Civ. P. 8. Wolfe received these instructions at the hearing, and they were set out in the court's order of October 13, 1987.2 

Wolfe failed to file an amended complaint and a second hearing was held on November 13, 1987. Wolfe declined the court's offer of an additional two weeks to amend, stating:

I did not come into this court to file a complaint on behalf of myself, which is what you ordered me to do. I have a complaint over in superior court for that purpose.... I came in here to try to get a class action established.

The court then dismissed the complaint with prejudice for failure to comply with Rule 8 and the October 13 order. In doing so, the court did not abuse its discretion. Wolfe had made it perfectly clear that he would not amend the complaint to cure its deficiencies.

Wolfe cites no statute or case law, and this panel knows of none, supporting his assertion that a court must appoint counsel to represent a class of individuals in a class action where the class has been unable to find legal representation. With regard to his own claim that he should have appointed counsel, there is no constitutional right to appointed counsel in a civil case. Caruth v. Pinkney, 683 F.2d 1044, 1048 (9th Cir. 1982), cert. denied, 459 U.S. 1214 (1983). Moreover, Wolfe may not avail himself of the statutory provisions of 28 U.S.C. § 1915 because he is not proceeding in forma pauperis; consequently 28 U.S.C. § 1915(d) does not apply. See Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984) (motions to appoint counsel under section 1915 granted only in exceptional circumstances and at discretion of trial court); see also Caruth, 683 F.2d at 1048. Consequently, the court properly denied Wolfe's motion for appointed counsel.

Wolfe filed a motion on October 13, 1987, seeking to disqualify United States District Judge Schnacke based on statements and rulings made by Judge Schnacke during the October 2 hearing.

The standard for recusal under either 28 U.S.C. § 144 or 28 U.S.C. § 455 is " 'whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.' " United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (citation omitted). Any alleged prejudice must come from an extrajudicial source. Prior adverse rulings or statements made while presiding over a case are insufficient. Id.

Because Wolfe's motion alleges prejudice emanating from statements and rulings of Judge Schnacke during the October 2 hearing, there is no showing of extrajudicial prejudice. Wolfe's motion to disqualify Judge Schnacke was properly dismissed.

Wolfe asserts a special appearance filed by Veterans Taxicab Company, suggesting vexatious litigation and sua sponte dismissal for violation of Rule 8, improperly inflamed the judge against Wolfe and led to dismissal of his complaint. This argument is without merit. The transcript reveals the district court dismissed the complaint sua sponte, with leave to amend, after questioning Wolfe at length during the October 2 hearing. There was no finding of vexatious litigation, and no evidence in the record suggesting the district judge was improperly influenced.

Appellees' request for sanctions against Wolfe for prosecuting this appeal is denied. We cannot say that all of Wolfe's arguments are so lacking in merit as to be frivolous. See Fed. R. App. P. 38.

CONCLUSION

The district court's judgment is AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Because the district court dismissed Wolfe's complaint, rather than his action, we must first decide whether the dismissal was a final, appealable order under 28 U.S.C. § 1291. An order dismissing a complaint ordinarily is not appealable under section 1291 unless the court has made it clear that it has concluded the action cannot be saved by amendment. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir. 1984); DeWitt v. Pail, 366 F.2d 682, 684 (9th Cir. 1966)

The December 1 order states "Plaintiff's complaint is dismissed with prejudice for failure to comply with the prior order of October 13, 1987." (emphasis added). A plaintiff may appeal a dismissal with prejudice. Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329, 1342 (9th Cir. 1985).

In deciding to grant Wolfe leave to amend the complaint, however, the judge stated in the October 2 hearing that he was looking for some evidence that Wolfe had a cause of action. The judge then dismissed the complaint but granted leave to amend, indicating he had found there was some evidence that the cause of action could be saved by amendment.

At a hearing on November 13, the judge gave Wolfe three alternatives--dismissal for failure to comply with the order, a two-week extension to amend the complaint, or "let the matter be dismissed, and if you just want to have fun pursuing the case in federal court by appeal and otherwise, you can do that." The judge's comments at the November 13 hearing, combined with the dismissal "with prejudice," is evidence the district court intended to dispose of the action. Consequently, it is final and appealable. Hoohuli, 741 F.2d at 1171 n. 1.

 2

The order stated:

[P]laintiff is granted leave to file an amended complaint, which shall meet the following conditions and limitations:

a) The amended complaint shall be no longer than thirty-five (35) pages in length and shall not make any reference to the August 10, 1987 complaint or amendments thereto;

b) The amended complaint must be filed and properly served upon all defendants named therein by November 6, 1987;

c) The amended complaint shall be limited exclusively to claims arising under the laws of the United States, and the federal basis of those claims shall be stated with specificity;

d) Plaintiff Burton Wolfe is permitted to file an amended complaint exclusively on his own behalf and the amended complaint shall therefore allege only those facts and damage or harm that plaintiff himself has personally incurred;

e) Defendants shall be specifically named and identified.

f) The amended complaint shall state with specificity the damage or harm suffered by plaintiff with respect to each named defendant, the acts which gave rise to the alleged damage or harm and the exact relief requested of each defendant.