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Overton v. Wohlfeil

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 7, 2010

JAMES ALEXANDER GUERRA OVERTON FOR JULIA RACHEL OVERTON, PLAINTIFF,
v.
JOEL R. WOHLFEIL; DAVID B. OBERHOLTZER; BROWDER WILLIS, III; PAUL STACEY; TERRENCE CHUCAS; GEORGIA MANSURY, DEFENDANTS.

The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the Motion for Leave to Proceed in Forma Pauperis. (Doc. # 2).

BACKGROUND

On June 30, 2010, Plaintiff James Alexander Guerra Overton, a nonprisoner proceeding pro se, initiated this action by "filing a complaint on behalf of my daughter Julia Rachel Overton." (Doc. # 1 at 1). On June 30, 2010, Plaintiff filed the Motion for Leave to Proceed In Forma Pauperis. (Doc. # 2).

ANALYSIS

I. Motion to Proceed In Forma Pauperis

All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

In his affidavit accompanying the Motion, Plaintiff states that he is self-employed with an income of $180 per month, and he has no bank accounts and no assets of value. (Doc. # 2 at 2-3). Plaintiff states that he pays $72 per month in child support and he owes $7,500 on an automobile loan. Id. The Court has reviewed Plaintiff's affidavit and finds it is sufficient to show that Plaintiff is unable to pay the fees required to maintain this action. The Court grants the Motion to Proceed In Forma Pauperis pursuant to 28 U.S.C. § 1915(a).

II. Initial Screening Pursuant to 28 U.S.C. § 1915(e)(2)(b)

After granting In Forma Pauperis status, the Court must dismiss the case sua sponte if "the action ... is frivolous or ... fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001).

"[A] parent or guardian cannot bring an action on behalf of a minor child without retaining a lawyer." Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997). Plaintiff purports to bring this action on behalf of his minor daughter. (Doc. # 1 at 2 ("I am James Alexander Guerra Overton ... filing for my daughter Julia Rachel Overton, DOB December 15, 2003.")). Plaintiff is appearing pro se and has not indicated that he is a lawyer. Accordingly, the Complaint must be dismissed.

CONCLUSION

IT IS HEREBY ORDERED that the Motion for Leave to Proceed in Formal Pauperis (Doc. # 2) is GRANTED. The Complaint is DISMISSED without prejudice. The Clerk of the Court shall close this case.

WILLIAM Q. HAYES United States District Judge

20100707

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