The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS DENYING PLAINTIFFS' MOTIONS TO PROCEED IN FORMA PAUPERIS AND ORDERING THE COMPLAINT TO BE DISMISSED WITH LEAVE TO AMEND (Docs. 6, 8)
On March 10, 2010, each plaintiff filed a motion to proceed in forma pauperis ("IFP"). (Docs 2, 3, 4) On March 31, 2010, the Court ordered each plaintiff to file amended motions to proceed in forma pauperis because each was incomplete for various reasons that made it impossible for the Court to determine the motions. On April 9, 2010, each of the plaintiffs filed amended motions. (Docs 6, 7, 8)
Under 28 USC § 1915(e)(2), the Court is obligated to deny the motion to proceed IFP if the allegation of poverty is untrue or the action is frivolous or malicious, it fails to state a claim upon which relief may be granted or seeks monetary relief against a defendant who is immune. For the reasons set forth below, the Court recommends that the motions to proceed IFP be DENIED and the complaint be DISMISSED WITH LEAVE TO AMEND.
I. Motions to Proceed IFP
All parties instituting any civil action, suit or proceeding in a United States District Court must pay a filing fee. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the fee only if the plaintiff is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
To prevail on this motion, Plaintiffs need not demonstrate that they are completely destitute but they must show that, because of their poverty, they cannot pay the filing fee and still provide their dependents with the necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). A "showing of something more than mere hardship must be made." Martin v. Gulf States Utilities Co., 221 F.Supp. 757, 759 (W.D. LA 1963).
This Court has broad discretion to grant or deny Plaintiff's motion. O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). "[P]ermission to proceed in forma pauperis is itself a matter of privilege and not right; denial of in forma pauperis status does not violate the applicant's right to due process." Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (citation omitted). "The trial court must be careful to avoid construing the statute so narrowly that a litigant is presented with a Hobson's choice between eschewing a potentially meritorious claim or foregoing life's plain necessities. [Citations]. But, the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar. Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984) (citation omitted).
A. The Application to Proceed IFP by Plaintiff Lewis should be Denied Due to her Failure to Comply with the Court's Order
Ms. Lewis filed her initial motion to proceed IFP on March 10, 2010. (Doc 3) Because it was incomplete, the Court ordered her to file an amended application. (Doc 5) Ms. Lewis complied with this order and filed her amended application on April 9, 2010. (Doc 7) The application continued to be incomplete because it failed to provide information about the amount of income that she receives for her children. As a result, the Court, once again, ordered Ms. Lewis to file an amended application that provided this information. (Doc 9) She was given ten days, or until April 26, 2010, to file her amended application to proceed in forma pauperis. Id. In the order, the Court warned Ms. Lewis that "failure to comply with this order may result in denial of her amended motion to proceed in forma pauperis." Id. Despite the passage of the filing deadline, Ms. Lewis has failed to file an amended motion. Therefore, the Court recommends that Ms. Lewis' motion to proceed IFP be DENIED.
B. The Applications to Proceed IFP by the Crawford Plaintiffs should be Denied Because Their Income is Sufficient to Allow Them to Pay the Filing Fee
Rev. and Mrs. Crawford each filed amended applications on April 9, 2010. (Docs 6, 8) When considering these motions together, it appears that the family of five, receives $4,298 per month.*fn1 *fn2 (Docs 6, 8) This calculates to an annual income of over $51,000.
The Court recognizes that $2,650 per month is received by the couple to assist in the care of their adult son, who suffers from severe physical and mental impairments. However, the Crawfords attest that they do not receive public benefits for their other two children because the income received for their adult son "is counted as actual income" to the family by the County of Kern when calculating the public benefits to which the family is entitled. Notwithstanding the opinion of Kern Regional Center as to the significance of this sum to the family's income, the County of Kern, who has been charged with the responsibility of evaluating income for purposes of allocating governmental financial assistance, has determined that this money is, indeed, family income. Based thereon, the Court concludes that this amount is income to the family and is properly considered here.*fn3 Therefore, the Court finds that the family income is sufficient to allow the Crawford Plaintiffs to pay the filing fee in this case without causing them to forgo the necessities of life. Consequently, the Court recommends that motion to proceed IFP filed by Rev. and Mrs. Crawford be DENIED.
II. All of the Applications to Proceed IFP should be Denied Because the Complaint Fails to State a Claim
The Court is required to deny an application to proceed IFP when the complaint fails to state a claim. 28 USC § 1915(e)(2). For the reasons set forth below, the Court finds that the Plaintiffs' complaint fails to comply with the requirements of Rule 8 and fails to state a claim. As a result, this forms an alternate basis to deny the applications to proceed IFP. Although the Court concludes that the complaint should be dismissed, it recommends that leave to amend be granted. Lopez v. Smith, 203 F.3d 1122, 1127-1128 (9th Cir. 2000) (en banc).
a. The Plaintiffs Cannot Raise Class-Related Claims
The named plaintiffs are Wesley and Shontelle Crawford and Precious Lewis. Within the body of the complaint, the plaintiffs seem to assert that they bring the action on behalf of their minor children. (Doc 1 at 3) However, later in the complaint, it appears that the Plaintiffs, purports to bring the action "on behalf of all other African American/Black parents similarly situated" and the complaint specifically indicates that this is done according to Fed. R. Civ. P. 23. Id. Notably, the Plaintiffs assert that they "can adequately represent the interests of the class." Id.
To the contrary, none of the Plaintiffs could be an adequate class representative in this situation because none is an attorney. Although each Plaintiff may appear and represent himself/herself pro se (28 U.S.C. § 1654), as they are doing here, this privilege is personal to each plaintiff. No pro se plaintiff has the authority to appear as an attorney for the others. Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962); McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966) (lay person lacks authority to appear as an attorney for others). Therefore, Court recommends that the class-related claims be dismissed.
b. Because the Plaintiffs have not Sought Formal Appointment of as Guardians ad Litem and Because the Children are not Represented by Counsel, the Claims Raised on Their Behalf should be Dismissed
As noted above, in the complaint, the named Plaintiffs indicate that they are suing on behalf of their children and/or their wards. (Doc 1 at 3) They do not allege the names of the children on whose behalf the litigation is initiated and have not sought formal appointment as the children's guardians ad litem. Federal Rule of Civil Procedure 17(c)(2) provides that a minor may sue through a guardian ad litem or by next friend, but a court must formally appoint the guardian ad litem to protect the unrepresented minor. See Watson v. County of Santa Clara, 468 F. Supp. 2d 1150, 1155 (N.D. Cal. 2007) (dismissing without prejudice actions brought by plaintiff minors because no guardian ad litem was formally appointed by the court).
On the other hand, even assuming that this occurs, it is settled that after a court appoints a guardian ad litem or next friend to represent the child, the guardian ad litem must retain a lawyer, because the non-lawyer guardian may not appear as an attorney for anyone other than himself. See Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997). In Johns, the Court determined that claims brought on behalf of a child must be dismissed without prejudice if the guardian refuses to hire a lawyer. Id. This is to preserve the child's ability to prosecute his claims himself when he achieves the age of majority. Id. Therefore, the Court recommends that the claims brought on behalf of the children be dismissed pending the appointment of a guardian ad litem and the hiring of an attorney.
c. The Court Cannot Determine the Injury that the Plaintiffs claim They Suffered as a Result of the Alleged Discriminatory Action
To the extent that the injury alleged in the complaint relates to the inferior education the children are receiving as a result of the discriminatory practices alleged to be practiced by KHSD, the complaint fails to identify any injury that the adult Plaintiffs have suffered. Although they allege that "parents" are prevented from having unfettered access to school meetings and to the classroom, they do not allege that they have been so prevented. Moreover, they fail to identify the federal or state law that permits parents to attend classroom sessions or principals' meetings at their will or that would ...