A.V. v. Panama Buena Vista Union School District
Filing
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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)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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A.V.,
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Plaintiff,
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v.
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PANAMA-BUENA VISTA UNION SCHOOL )
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DISTRICT,
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Defendant.
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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
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Plaintiff A.V. initiated this action by filing a complaint and motion to proceed in forma
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pauperis. (Docs. 1-2.) The Court may authorize the commencement of an action without prepayment
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of fees “but a person who submits an affidavit that includes a statement of all assets such person . . .
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possesses [and] that the person is unable to pay such fees or give security therefor.” 28 U.S.C. §
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1915(a). The Court has reviewed the motion and finds Plaintiff satisfies the requirements of 28 U.S.C.
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§ 1915(a).
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Importantly, however, Plaintiff is a child. The capacity of a litigant is determined by “the law
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of the state where the court is located.” Fed. R. Civ. P. 17(b). Under California law, a child “shall
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appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the
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court in which the action or proceeding is pending, or by the judge in each case.” Cal. Code of Civ. P.
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§ 372. Consequently, a child cannot maintain an action on his own, but may appear as a litigant if
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represented by a guardian ad litem. Fed. R. Civ. P. 17(c). The Local Rules instruct:
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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.
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Local Rule 202(a). Here, although Concepcion Varela is identified as Plaintiff’s guardian ad litem in
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the caption of the complaint, it is unclear whether she was previously appointed as his guardian ad
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litem. Further, no motion has been filed with the court for the appointment of a guardian. Thus, it
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appears Plaintiff lacks the capacity to prosecute this action.
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Based upon for the foregoing, IT IS HEREBY ORDERED:
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1.
Plaintiff’s motion to proceed in forma pauperis is GRANTED; and
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2.
Plaintiff SHALL show cause within twenty-one days why the action should not be
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dismissed for a lack of capacity to sue or, in the alternative, to file a petition for the
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appointment of a guardian ad litem.
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IT IS SO ORDERED.
Dated:
February 24, 2015
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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