1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 T.H., a minor., Case No.: 24-CV-358 JLS (DDL)
12 Plaintiff, ORDER: (1) REQUIRING 13 v. PLAINTIFF TO CLARIFY STATUS OF HER REPRESENTATIVE; 14 MARTIN O’MALLEY, officially as (2) DENYING PLAINTIFF’S Commissioner of the Social Security 15 APPLICATION TO PROCEED IN Administration, FORMA PAUPERIS; AND (3) 16 Defendant. REFERRING MATTER TO 17 MAGISTRATE JUDGE FOR REPORT AND 18 RECOMMENDATION 19 (ECF Nos. 1, 2) 20 21 Presently before the Court is Plaintiff T.H.’s (“Plaintiff” or “T.H.”) Complaint 22 (“Compl.,” ECF No. 1) and Application to Proceed in District Court Without Prepaying 23 Fees or Costs (“IFP Appl.,” ECF No. 2).1 Having carefully considered Plaintiff’s 24 Complaint, Plaintiff’s submissions, and the applicable law, the Court (1) ORDERS 25 Plaintiff to clarify the status of her representative, (2) DENIES Plaintiff’s IFP Application, 26 and (3) REFERS this matter to the assigned magistrate judge. 27
28 1 The instant case involves an appeal from the Social Security Administration’s denial 2 of Plaintiff’s application for Supplemental Security Income benefits. Compl. ¶ 1. Plaintiff 3 is sixteen years old. Id. ¶ 13. 4 I. Plaintiff’s Representative 5 “To maintain a suit in a federal court, a child or mental incompetent must be 6 represented by a competent adult.” T.W. ex rel. Enk v. Brophy, 124 F.3d 893, 895 (7th Cir. 7 1997). Federal Rule of Civil Procedure 17(c)(1) enumerates specific persons who may sue 8 or defend on behalf of a minor, including a “general guardian,” i.e., a minor’s custodial 9 parent. See J.F. v. San Diego Cnty. Unified Sch. Dist., No. 19-CV-2495-CAB-LL, 2020 10 WL 30435, at *1 (S.D. Cal. Jan. 2, 2020); Doe ex rel. Sisco v. Weed Union Elementary 11 Sch. Dist., No. 2:13-CV-01145-GEB, 2013 WL 2666024, at *1 (E.D. Cal. June 12, 2013). 12 If a minor is not represented by one of these persons, a court must “appoint a guardian ad 13 litem—or issue another appropriate order—to protect [the] minor.” Fed. R. Civ. P. 14 17(c)(2). If, however, the minor is represented by their custodial parent, the Court need 15 not act “unless a conflict of interest exists between the parent and minor.” Burke v. Smith, 16 252 F.3d 1260, 1264 (11th Cir. 2001); Doe ex rel. Sisco, 2013 WL 2666024, at *1. 17 An individual’s capacity to sue is determined “by the law of the individual’s 18 domicile.” Andrade v. United States, No. 19-CV-0930-BAS-WVG, 2019 WL 2289325, at 19 *1 (S.D. Cal. May 29, 2019) (quoting Fed. R. Civ. P. 17(b)(1)). Here, Plaintiff is under 20 the age of eighteen and is thus a minor under California law, the state where Plaintiff is 21 domiciled. See Compl. ¶¶ 4, 13; Cal. Fam. Code § 6502. Thus, if Plaintiff is not 22 represented by one of Rule 17(c)(1)’s enumerated representatives, the Court must consider 23 appointing a guardian ad litem to protect Plaintiff’s interests. 24 It is ambiguous whether T.H. is represented in this action. The Complaint’s Civil 25 Cover Sheet indicates, under its Plaintiffs heading, “Schmitz, Candy Sue for TH,” which 26 suggests that T.H. is represented. See ECF No. 1-1. Plaintiff’s IFP Application similarly 27 identifies the “Plaintiff/Petitioner” as “Candy Sue Schmitz for TH a minor.” IFP Appl. at 28 1. And the same Application states that T.H. is Schmitz’s child. Id. at 3. If indeed Schmitz 1 is (1) T.H.’s custodial parent and (2) representing T.H. in this action without a conflict of 2 interest, this action can proceed under Rule 17(c)(1) without the appointment of a guardian 3 ad litem. See Doe ex rel. Sisco, 2013 WL 2666024, at *1. 4 The Complaint itself, however, points in the opposite direction. The Complaint’s 5 caption lists only T.H. and Defendant Martin O’Malley, with no mention of Schmitz. 6 Compl. at 1. The same is true respecting the Complaint’s “Parties” section. Id. ¶¶ 4–5. 7 Judging by the face of the Complaint, therefore, T.H. is unrepresented and cannot proceed 8 in this action without an appointed guardian ad litem or other appropriate order. 9 As this action cannot proceed while the above ambiguity remains unresolved, the 10 Court ORDERS Plaintiff to either (1) amend her Complaint to add Candy Sue Schmitz as 11 T.H.’s representative or (2) file a motion to appoint Candy Sue Schmitz as guardian ad 12 litem for T.H.2 13 II. IFP Application 14 All parties instituting a civil action, suit, or proceeding in the Southern District of 15 California, other than a petition for writ of habeas corpus, must pay a filing fee of $405. 16 See Fees of the U.S. District Court, United States District Court: Southern District of 17 California, https://www.casd.uscourts.gov/_assets/pdf/courtinfo/Fees%20of%20the%20U 18 .S.%20District%20Court%20(CASD).pdf (last visited Mar. 20, 2024). An action may 19 proceed despite a party’s failure to pay the filing fee only if the party is granted leave to 20 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)(1), which reads as 21 follows: 22 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or 23 proceeding . . . without prepayment of fees or security therefor, 24 by a person who submits an affidavit that includes a statement of 25
26 2 Plaintiff may pursue the first option if Schmitz qualifies as T.H.’s general guardian; any amended 27 complaint should include sufficient factual allegations to demonstrate that Schmitz so qualifies. If 28 Plaintiff elects the latter route, such a motion should be accompanied by a supporting declaration like that 1 asullc ahs sfeeetss sourc ghi v[pee sresocunr]i ptyo sthseesresefos rt.h at the person is unable to pay 2
3 As § 1915(a)(1) does not itself define what constitutes insufficient assets to warrant IFP 4 status, the determination of indigency falls within the district court’s discretion. See Cal. 5 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 1915 typically 6 requires the reviewing court to exercise its sound discretion in determining whether the 7 affiant has satisfied the statute’s requirement of indigency.”), rev’d on other grounds, 506 8 U.S. 194 (1993). 9 “An affidavit in support of an IFP application is sufficient where it alleges that the 10 affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. 11 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont de Nemours 12 & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely destitute to obtain benefits 13 of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960). 14 “Nonetheless, a plaintiff seeking IFP status must allege poverty ‘with some particularity, 15 definiteness and certainty.’” Escobedo, 787 F.3d at 1234 (quoting United States v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 T.H., a minor., Case No.: 24-CV-358 JLS (DDL)
12 Plaintiff, ORDER: (1) REQUIRING 13 v. PLAINTIFF TO CLARIFY STATUS OF HER REPRESENTATIVE; 14 MARTIN O’MALLEY, officially as (2) DENYING PLAINTIFF’S Commissioner of the Social Security 15 APPLICATION TO PROCEED IN Administration, FORMA PAUPERIS; AND (3) 16 Defendant. REFERRING MATTER TO 17 MAGISTRATE JUDGE FOR REPORT AND 18 RECOMMENDATION 19 (ECF Nos. 1, 2) 20 21 Presently before the Court is Plaintiff T.H.’s (“Plaintiff” or “T.H.”) Complaint 22 (“Compl.,” ECF No. 1) and Application to Proceed in District Court Without Prepaying 23 Fees or Costs (“IFP Appl.,” ECF No. 2).1 Having carefully considered Plaintiff’s 24 Complaint, Plaintiff’s submissions, and the applicable law, the Court (1) ORDERS 25 Plaintiff to clarify the status of her representative, (2) DENIES Plaintiff’s IFP Application, 26 and (3) REFERS this matter to the assigned magistrate judge. 27
28 1 The instant case involves an appeal from the Social Security Administration’s denial 2 of Plaintiff’s application for Supplemental Security Income benefits. Compl. ¶ 1. Plaintiff 3 is sixteen years old. Id. ¶ 13. 4 I. Plaintiff’s Representative 5 “To maintain a suit in a federal court, a child or mental incompetent must be 6 represented by a competent adult.” T.W. ex rel. Enk v. Brophy, 124 F.3d 893, 895 (7th Cir. 7 1997). Federal Rule of Civil Procedure 17(c)(1) enumerates specific persons who may sue 8 or defend on behalf of a minor, including a “general guardian,” i.e., a minor’s custodial 9 parent. See J.F. v. San Diego Cnty. Unified Sch. Dist., No. 19-CV-2495-CAB-LL, 2020 10 WL 30435, at *1 (S.D. Cal. Jan. 2, 2020); Doe ex rel. Sisco v. Weed Union Elementary 11 Sch. Dist., No. 2:13-CV-01145-GEB, 2013 WL 2666024, at *1 (E.D. Cal. June 12, 2013). 12 If a minor is not represented by one of these persons, a court must “appoint a guardian ad 13 litem—or issue another appropriate order—to protect [the] minor.” Fed. R. Civ. P. 14 17(c)(2). If, however, the minor is represented by their custodial parent, the Court need 15 not act “unless a conflict of interest exists between the parent and minor.” Burke v. Smith, 16 252 F.3d 1260, 1264 (11th Cir. 2001); Doe ex rel. Sisco, 2013 WL 2666024, at *1. 17 An individual’s capacity to sue is determined “by the law of the individual’s 18 domicile.” Andrade v. United States, No. 19-CV-0930-BAS-WVG, 2019 WL 2289325, at 19 *1 (S.D. Cal. May 29, 2019) (quoting Fed. R. Civ. P. 17(b)(1)). Here, Plaintiff is under 20 the age of eighteen and is thus a minor under California law, the state where Plaintiff is 21 domiciled. See Compl. ¶¶ 4, 13; Cal. Fam. Code § 6502. Thus, if Plaintiff is not 22 represented by one of Rule 17(c)(1)’s enumerated representatives, the Court must consider 23 appointing a guardian ad litem to protect Plaintiff’s interests. 24 It is ambiguous whether T.H. is represented in this action. The Complaint’s Civil 25 Cover Sheet indicates, under its Plaintiffs heading, “Schmitz, Candy Sue for TH,” which 26 suggests that T.H. is represented. See ECF No. 1-1. Plaintiff’s IFP Application similarly 27 identifies the “Plaintiff/Petitioner” as “Candy Sue Schmitz for TH a minor.” IFP Appl. at 28 1. And the same Application states that T.H. is Schmitz’s child. Id. at 3. If indeed Schmitz 1 is (1) T.H.’s custodial parent and (2) representing T.H. in this action without a conflict of 2 interest, this action can proceed under Rule 17(c)(1) without the appointment of a guardian 3 ad litem. See Doe ex rel. Sisco, 2013 WL 2666024, at *1. 4 The Complaint itself, however, points in the opposite direction. The Complaint’s 5 caption lists only T.H. and Defendant Martin O’Malley, with no mention of Schmitz. 6 Compl. at 1. The same is true respecting the Complaint’s “Parties” section. Id. ¶¶ 4–5. 7 Judging by the face of the Complaint, therefore, T.H. is unrepresented and cannot proceed 8 in this action without an appointed guardian ad litem or other appropriate order. 9 As this action cannot proceed while the above ambiguity remains unresolved, the 10 Court ORDERS Plaintiff to either (1) amend her Complaint to add Candy Sue Schmitz as 11 T.H.’s representative or (2) file a motion to appoint Candy Sue Schmitz as guardian ad 12 litem for T.H.2 13 II. IFP Application 14 All parties instituting a civil action, suit, or proceeding in the Southern District of 15 California, other than a petition for writ of habeas corpus, must pay a filing fee of $405. 16 See Fees of the U.S. District Court, United States District Court: Southern District of 17 California, https://www.casd.uscourts.gov/_assets/pdf/courtinfo/Fees%20of%20the%20U 18 .S.%20District%20Court%20(CASD).pdf (last visited Mar. 20, 2024). An action may 19 proceed despite a party’s failure to pay the filing fee only if the party is granted leave to 20 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)(1), which reads as 21 follows: 22 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or 23 proceeding . . . without prepayment of fees or security therefor, 24 by a person who submits an affidavit that includes a statement of 25
26 2 Plaintiff may pursue the first option if Schmitz qualifies as T.H.’s general guardian; any amended 27 complaint should include sufficient factual allegations to demonstrate that Schmitz so qualifies. If 28 Plaintiff elects the latter route, such a motion should be accompanied by a supporting declaration like that 1 asullc ahs sfeeetss sourc ghi v[pee sresocunr]i ptyo sthseesresefos rt.h at the person is unable to pay 2
3 As § 1915(a)(1) does not itself define what constitutes insufficient assets to warrant IFP 4 status, the determination of indigency falls within the district court’s discretion. See Cal. 5 Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (“Section 1915 typically 6 requires the reviewing court to exercise its sound discretion in determining whether the 7 affiant has satisfied the statute’s requirement of indigency.”), rev’d on other grounds, 506 8 U.S. 194 (1993). 9 “An affidavit in support of an IFP application is sufficient where it alleges that the 10 affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. 11 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont de Nemours 12 & Co., 335 U.S. 331, 339 (1948)). “One need not be absolutely destitute to obtain benefits 13 of the [IFP] statute.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960). 14 “Nonetheless, a plaintiff seeking IFP status must allege poverty ‘with some particularity, 15 definiteness and certainty.’” Escobedo, 787 F.3d at 1234 (quoting United States v. 16 McQuade, 647 F.2d 938, 940 (9th Cir.1981)). 17 Where a minor seeks leave to proceed IFP, courts consider the financial resources 18 of the minor’s parent or proposed guardian ad litem in addition to those of the minor. See 19 Elmer v. Comm’r of Soc. Sec., No. 1:22-CV-01045-SAB, 2022 WL 5237463, at *1 (E.D. 20 Cal. Sept. 21, 2022), report and recommendation adopted, No. 1:22-CV-1045-AWI-SAB, 21 2022 WL 9452375 (E.D. Cal. Oct. 14, 2022). Appropriately, Plaintiff’s IFP Application 22 includes Schmitz’s financial information. IFP Appl. at 1, 3. 23 Plaintiff’s IFP Application indicates that Schmitz averaged $4,845 per month in 24 gross income across the last twelve months and expects $5,423 in gross income this month. 25 Id. at 1. Schmitz’s monthly expenses total $3,822.53, including $224.53 in employer- 26 provided insurance. Id. at 5. Lastly, Schmitz has $500 in a checking account, $2.00 in a 27 savings account, and a 2023 vehicle worth $19,890. 28 / / / 1 Factoring in all of Schmitz’s expenses, and taking the lower of Schmitz’s income 2 figures, Schmit’s gross monthly income exceeds her monthly expenses by $1,022.47. In 3 similar circumstances, courts have concluded that litigants possess sufficient income to pay 4 the filing fee and still afford the necessities of life. See Elmer, 2022 WL 5237463, at *1 5 (denying IFP where the plaintiff reported an average of $4,800 per month in gross income 6 across the previous twelve months); Julieann P. v. Kijakazi, No. 22-CV-1316-DDL, 2022 7 WL 6584374, at *1 (S.D. Cal. Sept. 23, 2022); Gastelum v. M5 Dev LLC, No. 21-CV- 8 01255-BAS-AHG, 2021 WL 3438641, at *1 (S.D. Cal. July 21, 2021). Accordingly, the 9 Court DENIES Plaintiff’s IFP Application. 10 III. Referral 11 Lastly, all matters arising in this Social Security appeal are referred to the Honorable 12 David D. Leshner, United States Magistrate Judge, for Report and Recommendation 13 pursuant to section 636(b)(1)(B) of title 28 of the United States Code and Local Rule 72.1. 14 IV. Conclusion 15 For the above reasons, the Court ORDERS the following: 16 1. Plaintiff SHALL either (1) amend her Complaint to add Candy Sue Schmitz 17 as T.H.’s representative or (2) file a motion to appoint Candy Sue Schmitz as 18 guardian ad litem for T.H. 19 2. Plaintiff’s IFP Application is DENIED. Plaintiff SHALL PAY the required 20 filing fee. 21 3. All matters arising in this Social Security appeal are REFERRED to the 22 Honorable David D. Leshner, United States Magistrate Judge, for Report and 23 Recommendation. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 If Plaintiff fails to complete items one and two of the above within thirty (30) days 2 || of the date of this Order, the Court will dismiss this action without prejudice. 3 IT IS SO ORDERED. 4 Dated: March 20, 2024 jae L. Lo memeaite- 5 on. Janis L. Sammartino ‘ United States District Judge
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