Opinion
Case No. 1:16-cv-00564-SAB
04-25-2016
MADLYN SCOTT, on behalf of D.S., a minor, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER REQURING PLAINTIFF TO SUBMIT MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM ORDER REQUIRING PLAINTIFF TO PAY FILING FEE OR FILE LONG FORM IFP APPLICATION
Plaintiff seeks judicial review of the administrative decision denying D.S.'s claim for Social Security benefits. Plaintiff is bringing this action on behalf of her minor daughter, D.S.
The capacity of a litigant is determined "by the law of the state where the court is located." Fed R. Civ. P. 17(b). Under California law, a minor "shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by the judge in each case." Cal. Code of Civ. P. § 372. Consequently, a minor cannot maintain an action on his own. However, a minor may appear as a litigant if represented by a guardian ad litem. See Fed. R. Civ. P. 17(c). The Local Rules instruct:
Upon commencement of an action or upon initial appearance in defense of an action by or on behalf of a minor or incompetent person, the attorney representing the minor or incompetent person
shall present (1) appropriate evidence of a representative for the minor or incompetent person under state law or (2) a motion for the appointment of a guardian ad litem by the Court, or, (3) a showing satisfactory to the Court that no such appointment is necessary to ensure adequate representation of the minor or incompetent person. See Fed. R. Civ. P. 17(c).Local Rule 202(a).
Here, Plaintiff's counsel has not provided evidence that Plaintiff is D.S.'s representative under state law, and no motion has been filed with the court for the appointment of a guardian ad litem. Plaintiff must submit a motion for appointment of a guardian ad litem within fourteen days of the date of service of this order.
The Court notes that Plaintiff filed an application to proceed in forma pauperis on April 21, 2016. (ECF No. 2). "Under 28 U.S.C. § 1915(a) where leave to proceed [i]n forma pauperis is sought to vindicate the alleged substantive rights of a minor, the financial resources of both the minor and the volunteer parent, next friend, or guardian ad litem should be considered in determining ability to pay the costs of litigation." Williams v. Spencer, 455 F.Supp. 205, 209 (D. Md. 1978). If Plaintiff is appointed guardian ad litem for D.S., then Plaintiff must either pay the filing fee or submit an application to proceed in forma pauperis with adequate information about the financial resources of both D.S. and Plaintiff.
The Court notes that the April 21, 2016 application to proceed in forma pauperis was not adequately completed. The Court may authorize the commencement of an action without prepayment of fees for "a person who submits an affidavit that includes a statement of all assets such person . . . possesses [and] that the person is unable to pay such fees or give security thereof." 28 U.S.C. § 1915(a).
In the April 21, 2016 application, Plaintiff states that she is currently employed and that her take-home salary or wages is $1,645.00. However, Plaintiff does not state the pay period for the take-home salary or wages and the name and address of her employer. Plaintiff also states that she receives $300 in food stamps, but she does not state how often she receives that amount of money. Plaintiff lists four persons who are dependent on her for support, but she does not indicate how much she contributes to their support. An in forma pauperis application must state sufficient information for the Court to determine the ability to pay the costs of litigation.
Accordingly, the Court will order Plaintiff to complete and file an Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) - AO 239. Plaintiff must provide information about the financial resources of both Plaintiff and D.S. If Plaintiff is unwilling to complete and submit the long form application, Plaintiff must pay the filing fee in full.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff is DIRECTED to file a motion for appointment of a guardian ad litem within fourteen (14) days of the date of service of this order;IT IS SO ORDERED. Dated: April 25 , 2016
2. Within fourteen (14) days of the date of this order, Plaintiff shall either (1) pay the $400.00 filing fee for this action, or (2) file a long form application to proceed in forma pauperis without prepayment of the fee; and
3. If Plaintiff fails to comply with this order, this action shall be dismissed.
/s/_________
UNITED STATES MAGISTRATE JUDGE