Ganey v. County of San Diego

• Court: District Court, S.D. California
• Decided: September 21, 2023
• Docket: 3:23-cv-01448
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 MICHELLE DIANE GANEY AND Case No.: 23-cv-1448-CAB-AHG MICHAEL JAMES GANEY, JR., 14 ORDER GRANTING MOTION TO Plaintiffs, 15 PROCEED IN FORMA PAUPERIS v. AND DISMISSING COMPLAINT 16 WITHOUT PREJUDICE COUNTY OF SAN DIEGO; Child 17 Welfare Services (CWS), et al,

18 Defendants. [Doc. Nos. 2, 3] 19

20 On August 7, 2023, Michelle Diane Ganey and Michael James Ganey, Jr. 21 (“Plaintiffs”), on behalf of themselves and their minor children, T.E.W, T.A.W., and 22 M.J.G., filed a complaint [Doc. No. 1] against the San Diego County Child Welfare 23 Services and multiple caseworkers for violations of 42 U.S.C. § 1983 and various state 24 laws. Plaintiffs also filed a motion to appoint counsel. [Doc. No. 3]. Plaintiffs did not 25 prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the time of filing; instead, 26 they filed a Motion to Proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 27 28 1 [Doc. No. 2]. For the reasons set forth, the IFP is GRANTED, the motion to appoint 2 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 5 28 U.S.C. § 1914(a); CivLR 4.5(a). However, under 28 U.S.C. § 1915(a), the court may 6 authorize commencement, prosecution, or defense of any suit without payment of fees if 7 the plaintiff submits an affidavit, including a statement of all his or her assets, showing that 8 he or she is unable to pay filing fees or costs. “An affidavit in support of an IFP application 9 is sufficient where it alleges that the affiant cannot pay the court costs and still afford the 10 necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). “[A] 11 plaintiff seeking IFP status must allege poverty with some particularity, definiteness, and 12 certainty.” Id. (internal quotation marks omitted). The granting or denial of leave to 13 proceed IFP in civil cases is within the sound discretion of the district court. Venerable v. 14 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 16 accounts, that one of them just lost their job, and they presently care for three children with 17 a limited income. Plaintiffs’ application sufficiently shows they lack the financial resources 18 to pay filing fees. Accordingly, Plaintiffs’ motion to proceed IFP [Doc. No. 2] is 19 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 22 sufficiency of the complaint under 28 U.S.C. § 1915. A complaint filed by any person 23 seeking to proceed IFP pursuant to 28 U.S.C. § 1915(a) is subject to sua sponte dismissal 24 if it is “frivolous or malicious; fails to state a claim upon which relief may be granted; or 25 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 27 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 2 safeguard because “a litigant whose filing fees and court costs are assumed by the public, 3 ||unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, 4 || malicious, or repetitive lawsuits.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting 5 || 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 7 || against the Defendants are asserted by pro se Plaintiffs on behalf of themselves and their 8 minor children. The Ninth Circuit has found that “the privilege to represent oneself pro se 9 ||. . . is personal to the litigant and does not extend to other parties or entities.” Simon v. 10 || 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, 12 || 114 F.3d 874, 877 (9th Cir. 1997). Because the current complaint includes Plaintiffs’ minor 13 ||children as parties and neither parent is an attorney, Plaintiffs’ complaint is DISMISSED 14 || 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 16 ||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. 19 20 It is SO ORDERED. 21 Dated: September 20, 2023 € ZL 22 Hon. Cathy Ann Bencivengo 23 United States District Judge 24 25 26 27 28