A.V. v. Panama Buena Vista Union School District

Filing 4

ORDER GRANTING 1 Plaintiff's Motion to Proceed In Forma Pauperis; ORDER to Plaintiff to SHOW CAUSE Why the Action Should Not Be Dismissed, signed by Magistrate Judge Jennifer L. Thurston on 2/24/2015. Show Cause Response due within 21 days. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

A.V.,

)
)
Plaintiff,
)
)
v.
)
PANAMA-BUENA VISTA UNION SCHOOL )
)
DISTRICT,
)
)
Defendant.
)

Case No.: 1:15-cv-00246 - --- - JLT
ORDER GRANTING PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS
ORDER TO PLAINTIFF TO SHOW CAUSE
WHY THE ACTION SHOULD NOT BE
DISMISSED

17

Plaintiff A.V. initiated this action by filing a complaint and motion to proceed in forma

18

pauperis. (Docs. 1-2.) The Court may authorize the commencement of an action without prepayment

19

of fees “but a person who submits an affidavit that includes a statement of all assets such person . . .

20

possesses [and] that the person is unable to pay such fees or give security therefor.” 28 U.S.C. §

21

1915(a). The Court has reviewed the motion and finds Plaintiff satisfies the requirements of 28 U.S.C.

22

§ 1915(a).

23

Importantly, however, Plaintiff is a child. The capacity of a litigant is determined by “the law

24

of the state where the court is located.” Fed. R. Civ. P. 17(b). Under California law, a child “shall

25

appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the

26

court in which the action or proceeding is pending, or by the judge in each case.” Cal. Code of Civ. P.

27

§ 372. Consequently, a child cannot maintain an action on his own, but may appear as a litigant if

28

represented by a guardian ad litem. Fed. R. Civ. P. 17(c). The Local Rules instruct:
1

1
2
3

Upon commencement of an action or upon initial appearance in defense of an action by
or on behalf of a minor . . . the attorney representing the minor…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.

4

Local Rule 202(a). Here, although Concepcion Varela is identified as Plaintiff’s guardian ad litem in

5

the caption of the complaint, it is unclear whether she was previously appointed as his guardian ad

6

litem. Further, no motion has been filed with the court for the appointment of a guardian. Thus, it

7

appears Plaintiff lacks the capacity to prosecute this action.

8

Based upon for the foregoing, IT IS HEREBY ORDERED:

9

1.

Plaintiff’s motion to proceed in forma pauperis is GRANTED; and

10

2.

Plaintiff SHALL show cause within twenty-one days why the action should not be

11

dismissed for a lack of capacity to sue or, in the alternative, to file a petition for the

12

appointment of a guardian ad litem.

13
14
15
16

IT IS SO ORDERED.
Dated:

February 24, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
2