McClain v. Strand et al

Filing 3

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/25/15 ORDERING that within 14 days, plaintiff shall pay the filing and general administrative fees in the amount of $400. Within 30 days, plaintiff shall obtain counsel. Failure to comply with this order shall result in a recommendation that the action be dismissed without prejudice. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONNELLE McCLAIN, on behalf of
IMHOTEP SALAT,
Plaintiff,

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ORDER
v.

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No. 2:15-cv-2009 KJM CKD PS

MARY STRAND, et al.,
Defendants.

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This action was filed by plaintiff’s guardian1 in propria persona on behalf of plaintiff. An

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incompetent person can only proceed if represented by counsel. See Johns v. County of San

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Diego, 114 F.3d 874 (9th Cir. 1997) (citations omitted) (“It goes without saying that it is not in

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the interest of minors or incompetents that they be represented by non-attorneys. Where they

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have claims that require adjudication, they are entitled to trained legal assistance so their rights

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may be fully protected.”). Plaintiff will therefore be granted thirty days to obtain counsel.

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Failure to timely obtain counsel will result in a recommendation that the action be dismissed

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without prejudice.

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Attached to the complaint are several exhibits purportedly filed in the Eighth Judicial District
Court of the State of Nevada in and for the County of Clark which allegedly demonstrate that
Donnelle McClain has been appointed guardian for Imhotep Salat due to his incompetence.
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Plaintiff has filed an in forma pauperis affidavit in which he states that he receives

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monthly Social Security benefits in the amount of $1,181. Pursuant to federal statute, a filing fee

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of $350.00 is required to commence a civil action in federal district court. 28 U.S.C. § 1914(a).

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In addition, a $50.00 general administrative fee for civil cases must be paid. 28 U.S.C. § 1914(b).

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The court may authorize the commencement of an action “without prepayment of fees and costs

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or security therefor, by a person who makes affidavit that he is unable to pay such costs or give

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security therefor.” 28 U.S.C. § 1915(a). The amount of plaintiff’s monthly income shows that

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plaintiff is able to pay the filing fee and costs. Thus, plaintiff has made an inadequate showing of

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indigency. See Alexander v. Carson Adult High Sch., 9 F.3d 1448 (9th Cir. 1993); California

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Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991); Stehouwer v. Hennessey, 841 F.

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Supp. 316, (N.D. Cal. 1994). Plaintiff will therefore be granted fourteen days in which to submit

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the appropriate fees to the Clerk of the Court. Plaintiff is cautioned that failure to pay the filing

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and general administrative fees in the amount of $400 will result in a recommendation that the

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application to proceed in forma pauperis be denied and the instant action be dismissed without

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prejudice.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within fourteen days, plaintiff shall pay the filing and general administrative fees in

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the amount of $400.
2. Within thirty days, plaintiff shall obtain counsel. Failure to comply with this order

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shall result in a recommendation that the action be dismissed without prejudice.

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Dated: September 25, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 mcclain2009.ifp.den.cou

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