Smith, et al v. Bentley

Filing 3

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/17/2015 ORDERING Plaintiffs' complaint is DISMISSED; Plaintiffs are GRANTED 30 days from the date of service of this order to file an amended complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the Local Rules of Practice; Plaintiffs shall submit, within 14 days from the date of this order, either a completed application and affidavit in support of the request to proceed in forma pauperis on th e form provided by the Clerk of Court, or the appropriate filing fee; The Clerk of the Court is directed to send plaintiffs a new Application to Proceed In Forma Pauperis; Within 30 days, plaintiffs shall obtain counsel for the minor plaintiffs. (Reader, L)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOLENE SMITH, et al.,

12
13
14
15

No. 2:15-cv-2334 MCE CKD PS

Plaintiffs,
v.

ORDER

KELLEY BENTLEY,
Defendant.

16
17

Plaintiffs have filed a purported criminal complaint. Plaintiffs are advised that the filing

18

of a criminal complaint cannot be undertaken in federal court by a private citizen. The complaint

19

will therefore be dismissed with leave to amend. In the amended complaint, only civil claims

20

may be made. Plaintiffs must set forth the jurisdictional grounds upon which the court’s

21

jurisdiction depends. Federal Rule of Civil Procedure 8(a). Further, plaintiffs must demonstrate

22

how the conduct complained of has resulted in a deprivation of plaintiffs’ federal rights. See Ellis

23

v. Cassidy, 625 F.2d 227 (9th Cir. 1980).

24

Plaintiffs have not paid the fee ordinarily required to file an action in this court, and have

25

filed an incomplete application to proceed without prepayment of fees. See 28 U.S.C. §§

26

1914(a), 1915(a). Four persons are named as plaintiffs in this action. The application to proceed

27

in forma pauperis has been signed by only one of the plaintiffs and income and asset information

28

has been provided only for plaintiff Jolene Smith. Plaintiffs will be provided the opportunity to
1

1

submit either the appropriate affidavit in support of a request to proceed in forma pauperis or the

2

appropriate filing fee.

3

Named as plaintiffs in this action are Isaiah Grandon and Christopher Markoulis, Jr. From

4

the exhibits attached to the complaint, it appears that these two named plaintiffs are the minor

5

sons of plaintiff Jolene Smith. A minor can only proceed if represented by counsel. See Johns v.

6

County of San Diego, 114 F.3d 874 (9th Cir. 1997) (citations omitted) (“It goes without saying

7

that it is not in the interest of minors or incompetents that they be represented by non-attorneys.

8

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

9

their rights may be fully protected.”). Plaintiffs will therefore be granted thirty days to obtain

10

counsel. Failure to timely obtain counsel will result in a recommendation that the action, as to

11

plaintiffs Isaiah Grandon and Christopher Markoulis, Jr., be dismissed without prejudice.

12

Accordingly, IT IS HEREBY ORDERED that:

13

1. Plaintiffs’ complaint is dismissed;

14

2. Plaintiffs are granted thirty days from the date of service of this order to file an

15

amended complaint that complies with the requirements of the Federal Rules of Civil Procedure,

16

and the Local Rules of Practice; the amended complaint must bear the docket number assigned

17

this case and must be labeled “Amended Complaint”; plaintiffs must file an original and two

18

copies of the amended complaint; failure to file an amended complaint in accordance with this

19

order will result in a recommendation that this action be dismissed;

20

3. Plaintiffs shall submit, within fourteen days from the date of this order, either a

21

completed application and affidavit in support of the request to proceed in forma pauperis on the

22

form provided by the Clerk of Court, or the appropriate filing fee; the completed affidavit must be

23

signed by all adult plaintiffs and provide income/financial information for each adult plaintiff;

24

plaintiffs’ failure to comply with this order will result in a recommendation that this action be

25

dismissed; and

26

4. The Clerk of the Court is directed to send plaintiffs a new Application to Proceed In

27

Forma Pauperis.

28

/////
2

1

5. Within thirty days, plaintiffs shall obtain counsel for the minor plaintiffs. Failure to

2

comply with this order shall result in a recommendation that the action, as to plaintiffs Isaiah

3

Grandon and Christopher Markoulis, Jr., be dismissed without prejudice.

4

Dated: November 17, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

5
6
7
8

4 smith2334.inc.lta.cou

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3