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Morales v. City of Delano

July 7, 2010

MANUELA CANCINO CONTRERAS MORALES, INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO RUBEN MESA MORALES, DECEASED; RUBEN ALEJANDRO MORALES, INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO RUBEN MESA MORALES, DECEASED, BY AND THROUGH HIS GUARDIAN AD LITEM, MANUELA CANCINO CONTRERAS MORALES, PLAINTIFFS,
v.
CITY OF DELANO, A MUNICIPAL CORPORATION; CITY OF DELANO POLICE DEPARTMENT, AN ENTITY OF UNKNOWN BUSINESS ORGANIZATION; MARK P. DEROSIA, INDIVIDUALLY AND IN HIS CAPACITY AS CHIEF OF POLICE OF THE CITY OF DELANO POLICE DEPARTMENT; JOSE MEJIA, INDIVIDUALLY AND IN HIS CAPACITY AS A RESERVE OFFICER OF THE CITY OF DELANO POLICE DEPARTMENT; SHAUN MANUELE, INDIVIDUALLY AND IN HIS CAPACITY AS AN OFFICER OF THE CITY OF DELANO POLICE DEPARTMENT; COUNTY OF KERN, A MUNICIPAL CORPORATION; AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER GRANTING MOTION FOR APPOINTMENT AS GUARDIAN AD LITEM

ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Docs. 3, 4)

I. Background

Plaintiffs are proceeding with a civil rights action pursuant to 42 U.S.C. § 1983. In their complaint, they allege that Ruben Mesa Morales was shot and killed unlawfully by law enforcement officers. Plaintiff Manuela Cancino Contreras Morales alleges that she was the wife of the decedent and that Ruben Alejandro Morales*fn1 was the decedent's minor child. (Doc. 1 at 2)

Before the Court are two motions, both filed on June 30, 2010. In the first, Plaintiff Manuela Cancino Contreras Morales seeks appointment as the guardian ad litem for her minor child, Ruben Alejandro Morales. (Doc. 4) In the second, Ms. Morales seeks permission to proceed in this action in forma pauperis ("IFP"). (Doc. 3)

II. Motion for appointment of guardian ad litem

In support of her motion, Ms. Morales attests that her child, Ruben, is seven years old and is the sole surviving child of Plaintiffs' decedent, Ruben Mesa Morales.*fn2 (Doc. 4 at 2) Ms. Morales asserts that she is the sole provider and caretaker of the child and is willing and able to take on the role of guardian ad litem for the boy. Id.

Based upon these sworn representations, the Court GRANTS Ms. Morales' request to be appointed as the guardian ad litem for her son, Plaintiff Ruben Alejandro Morales.

III. Motion to Proceed in Forma Pauperis

On June 30, 2010, Plaintiffs filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 3) In support of this motion, Plaintiff, Ms. Morales, asserted that she lives in Zacatecas, Mexico where she is employed as a teacher. (Doc. 3 at 2-3) She earns $700 per month and uses this money to support herself and her two minor children. (Doc. 3 at 2) As she can, she provides financial support for her parents and her mother-in-law also. (Doc 3 at 3) Also, her son, Ruben, receives $1,057 per month in benefits from Social Security due to his father's death. Id. Ms. Morales owns a small home in Mexico, valued at $10,900, and a car worth about $800. Id. After paying her husband's funeral expenses out of life insurance policy benefits, she maintains the balance of the insurance proceeds in a savings account in the amount of $4,600. Id.

Based upon the declaration submitted, the Court finds that Ms. Morales has satisfied the indigency requirements of 28 U.S.C. § 1915 and that Plaintiff is unable to pay the costs of commencing this action. Accordingly, Plaintiff's IFP motion is GRANTED.

IV. The Court is Required to Screen Plaintiff's Complaint

The Court is required to review a case filed IFP. 28 U.S.C. §1915(a); 28 U.S.C. 1915(e).

The Court must review the complaint and dismiss the action if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B); see Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987 (citing Franklin v. Murphy, 745 F. 2d 1221, 1228 (9th Cir. 1984)). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that ...


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