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Fedorova v. United States

United States District Court, S.D. California

May 29, 2018

SVETLANA FEDOROVA, in the interest of minor M.F., Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER 1. DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS [DOC. NO. 2]; 2. DENYING MOTION FOR APPOINTMENT OF COUNSEL [DOC. NO. 3]; 3. APPOINTING GUARDIAN AD LITEM; AND 4. DISMISSING THE COMPLAINT WITHOUT PREJUDICE PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)(II) [DOC. NO. 1]

          HON. JOHN A. HOUSTON UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         On April 28, 2017, Svetlana Fedorova (“Fedorova”), a citizen and national of Russia filed a complaint in the interest of her 12-month-old son, (“Plaintiff” or “M.F.”), a United States citizen, seeking declaratory and injunctive relief against enforcement of section 201 of the Immigration and Nationality Act (“INA”) (8 U.S.C. §1151(b)(2)(A)(i)) (“Act”). Fedorova, on behalf of M.F., alleges that denying “immediate relative” status to the alien parent of a citizen child who is under the age of twenty-one, violates her son's constitutional[1] right as an American citizen to “live in the U.S.” and infringes on his ability to preserve his identity, nationality, and family relations under Article 8 and 10 of the United Nations Convention on the Rights of the Child. See Doc. No. 1. She alleges that the Constitution provides her son with the right to be raised by both parents - in the United States - and petitions this court to allow her, as primary caretaker, to immigrate to the United States with her son, so that he may have access to the culture and be reconnected with his father and extended family.

         Civil filing fees, as required by 28 U.S.C. § 1914(a), were not paid at the time of filing. Instead, a motion for leave to proceed in forma pauperis (“IFP”) was filed, pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. Fedorova later filed a motion to appoint counsel. Doc. No. 3. After a careful review of the pleadings, exhibits and motions and for the reasons set forth below, the Court (1) DENIES the motion for leave to proceed IFP, [Doc. No. 2]; (2) DENIES the motion to appoint counsel [Doc No. 3], (3) APPOINTS a guardian ad litem, and (4) DISMISSES the Complaint, [Doc. No. 1], without prejudice, and with leave to amend to allow Plaintiff, through his newly appointed guardian ad litem, an opportunity to retain counsel.

         DISCUSSION

         I. Plaintiff's IFP Motion

         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 $400.[2] See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Courts grant leave to proceed IFP when plaintiffs submit an affidavit, including a statement of all of their assets, showing the inability to pay the statutory filing fee. See 28 U.S.C. § 1915(a).

         In support of Plaintiff's motion, Fedorova has submitted an application to proceed in district court without paying fees or costs. See Doc. No 2. The application indicates that Fedorova is currently unemployed, and has earned no job-related income during the past two years. Doc. No. 2 at 1-3. Additionally, Fedorova receives no income from real property, investments, retirement accounts, gifts, or alimony. Id. at 1. Fedorova's sole source of monthly income is a child support payment in the amount of $753.00 Id. at 2. Her average monthly expenses are $615.00. Id. at 4-5. She indicates that she owns a bank account, with a $1500 balance, real property valued at $200, 000 and a vehicle valued at $2500 with no other assets of value. Id. at 2-5. In the application, Fedorova lists M.F. as a person under the age of 18 who relies on her for support. Id. at 5.

         Fedorova has listed the assets and expenses for which she owns or is responsible - apparently completing the application on behalf of herself and not on behalf of her minor son. Her assets and liabilities are not, by default, the property of her minor son or his estate unless or until gifted or legally transferred. Based on these representations, the Court is unable to determine M.F.'s ability or inability to pay the statutory filing fee. Accordingly, the Court DENIES Plaintiff's motion for leave to proceed IFP.

         II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B)

         A. Standard of Review

         When a plaintiff seeks leave to proceed IFP, pursuant to 28 U.S.C. § 1915(a), the Complaint is subject to sua sponte review, and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a defendant immune from such relief.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S.Ct. 1759, 1763 (2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any time if the court determines that… (B) the action or appeal… (ii) fails to state a claim on which relief may be granted.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, but requires, a district court to dismiss an in forma pauperis complaint that fails to state a claim.”). “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).

         If the Court determines, on its own initiative, that the action lacks an arguable basis, Section 1915(e) authorizes dismissal. Cato v. United States, 70 F.3d 1103, 1106-07 (9th Cir. 1995) (affirming the district court's dismissal on jurisdictional and sovereign immunity grounds.) Before addressing whether the complaint states a plausible claim for relief, the Court must first determine (1) whether it has jurisdiction to grant the relief requested and (2) whether Fedorova has the authority or capacity to bring suit on behalf of her minor son.

         B. Jurisdiction to Grant Relief

         The Complaint alleges INA Sec. 201, 8 U.S.C 1151(b)(2)(A)(i), is unconstitutional as applied to M.F. because it infringes upon his fundamental right to family ...


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