Ganey v. County of San Diego

10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA MICHELLE DIANE GANEY AND Case No.: 23-cv-1448-CAB-AHG MICHAEL JAMES GANEY, JR., ORDER GRANTING MOTION TO Plaintiffs, 15 PROCEED IN FORMA PAUPERIS v. AND DISMISSING COMPLAINT WITHOUT PREJUDICE COUNTY OF SAN DIEGO; Child Welfare Services (CWS), et al, Defendants. [Doc. Nos. 2, 3] On August 7, 2023, Michelle Diane Ganey and Michael James Ganey, Jr. (“Plaintiffs”), on behalf of themselves and their minor children, T.E.W, T.A.W., and M.J.G., filed a complaint [Doc. No. 1] against the San Diego County Child Welfare Services and multiple caseworkers for violations of 42 U.S.C. § 1983 and various state laws. Plaintiffs also filed a motion to appoint counsel. [Doc. No. 3]. Plaintiffs did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the time of filing; instead, they filed a Motion to Proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).

1 [Doc. No. 2]. For the reasons set forth, the IFP is GRANTED, the motion to appoint counsel is DENIED, and the complaint is DISMISSED without prejudice.

3 I. Motion to Proceed IFP 4 Generally, all parties instituting a civil action in this court must pay a filing fee. See 28 U.S.C. § 1914(a); CivLR 4.5(a). However, under 28 U.S.C. § 1915(a), the court may authorize commencement, prosecution, or defense of any suit without payment of fees if the plaintiff submits an affidavit, including a statement of all his or her assets, showing that he or she is unable to pay filing fees or costs. “An affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). “[A] plaintiff seeking IFP status must allege poverty with some particularity, definiteness, and certainty.” Id. (internal quotation marks omitted). The granting or denial of leave to proceed IFP in civil cases is within the sound discretion of the district court. Venerable v. Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (citations omitted).

15 Here, Plaintiffs represent that they have less than $35.00 in their checking and saving accounts, that one of them just lost their job, and they presently care for three children with a limited income. Plaintiffs’ application sufficiently shows they lack the financial resources to pay filing fees. Accordingly, Plaintiffs’ motion to proceed IFP [Doc. No. 2] is GRANTED.

20 II. Screening of the Complaint Pursuant to 42 U.S.C. § 1915(e)(2)(B) 21 Upon granting a request to proceed IFP, the Court must additionally analyze the sufficiency of the complaint under 28 U.S.C. § 1915. A complaint filed by any person seeking to proceed IFP pursuant to 28 U.S.C. § 1915(a) is subject to sua sponte dismissal if it is “frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 26 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); see also Chavez v. Robinson, 817 28 F.3d 1162, 1167-68 (9th Cir. 2016) (noting that § 1915(e)(2)(B) “mandates dismissal— 1 if dismissal comes before the defendants are served’). Congress enacted this safeguard because “a litigant whose filing fees and court costs are assumed by the public, ||unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, || malicious, or repetitive lawsuits.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting || Neitzke v. Williams, 490 U.S.C. 319, 324 (1989).

6 Upon an initial screening of the complaint [Doc. No. 1], it appears all claims alleged || against the Defendants are asserted by pro se Plaintiffs on behalf of themselves and their minor children. The Ninth Circuit has found that “the privilege to represent oneself pro se ||. . . is personal to the litigant and does not extend to other parties or entities.” Simon v. || Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008). A parent or guardian cannot bring 11 action on behalf of a minor without obtaining a lawyer. Johns v. County of San Diego, || 114 F.3d 874, 877 (9th Cir. 1997). Because the current complaint includes Plaintiffs’ minor ||children as parties and neither parent is an attorney, Plaintiffs’ complaint is DISMISSED || without prejudice. Plaintiffs’ motion to appoint counsel [Doc. No. 3] is DENIED.

15 No later than October 20, 2023, Plaintiffs may either (1) file an amended complaint ||naming themselves alone as the Plaintiffs; or (2) have counsel appear in this case to 17 represent their minor children. If no counsel appears or an amended complaint is not filed 18 October 20, 2023, the Clerk of Court shall CLOSE this case.

20 It is SO ORDERED.

21 Dated: September 20, 2023 € ZL Hon. Cathy Ann Bencivengo 23 United States District Judge