Disabled Military Veteran Students of Chula VIsta Adult School v. Wesley Braddock et al et al

Filing 3

ORDER Denying 2 Motion to Proceed in Forma Pauperis. The Court denies Plaintiff's request to proceed IFP and dismisses the case without prejudice. To have the case reopened, Plaintiff must, no later than 1/12/2018, either:(a) procure license d legal representation and pay the $400 filing fee; or (b) file a complaint as an individual and file a renewed motion for IFP. Plaintiff's motion for a TRO contained in the body of the Complaint is terminated as moot. Any future request for injunctive relief must be made as a separate motion in accordance with the Undersigned's Civil Chambers Rules. Signed by Judge Michael M. Anello on 12/12/2017. (All non-registered users served via U.S. Mail Service)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
DISABLED MILITARY VETERAN
STUDENTS OF CHULA VISTA
ADULT SCHOOL,
v.

Case No.: 17cv2477-MMA (BGS)
ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS

Plaintiff,

[Doc. No. 2]

CHULA VISTA ADULT SCHOOL, et
al.,

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Defendants.

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On December 11, 2017, Plaintiff Disabled Military Veteran Students of Chula

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Vista Adult School (“Plaintiff”) filed this action against Chula Vista Adult School, Wes

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Braddock, Athena Matos, Ryan Burke, and Kevin Patrick, alleging violations of “Code of

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Federal Regulations Section 21 45253(d)(1) and section 21.4254(b).” Doc. No. 1 at 3.

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Plaintiff seeks a “TEMPORARY INJUNCTION of enrollment for Veteran Students of

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[Chula Vista Adult School] for FALL 2018 from December 13 to January 1, 2018 until

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all parties are heard and court decisions are made.” Id. at 6 (emphasis in original).

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Plaintiff simultaneously filed a motion to proceed in forma pauperis (“IFP”). See Doc.

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No. 2.

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All parties instituting any civil action, suit or proceeding in a district court of the
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17cv2477-MMA (BGS)

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. §

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1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To proceed in

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forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.

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1965). A party need not be completely destitute to proceed in forma pauperis. Adkins v.

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E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). But “the same even-

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handed care must be employed to assure that federal funds are not squandered to

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underwrite, at public expense, either frivolous claims or the remonstrances of a suitor

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who is financially able, in whole or in material part, to pull his own oar.” Temple v.

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Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).

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As an initial matter, Plaintiff is not an individual; rather, the Complaint indicates

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that Plaintiff Disabled Military Veteran Students of Chula Vista Adult School is

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incorporated under the laws of California, and has its principal place of business in Chula

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Vista.2 Doc. No. 1 at 3. Plaintiff’s status as a corporation, and its subsequent request to

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proceed IFP, is problematic for two reasons. First, the statute authorizing the

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commencement of an action without the prepayment of fees, 28 U.S.C. § 1915, extends

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only to individuals, and not to artificial entities. See Rowland v. Cal. Men’s Colony, 506

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U.S. 194, 201-02 (1993) (“It has been the law for the better part of two centuries . . . that

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a corporation may appear in the federal courts only through licensed counsel.”); United

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States v. High Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (“A corporation

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may appear in federal court only through licensed counsel.”). Because Plaintiff is a

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In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of
$50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court. Misc. Fee
Schedule, § 14 (eff. Dec. 1, 2016)). The additional $50 administrative fee does not apply to persons
granted leave to proceed IFP. Id.
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It is unclear whether Plaintiff is in fact a corporation. A search on the California Secretary of
State’s website for the corporation yielded no results. See https://businesssearch.sos.ca.gov/.
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17cv2477-MMA (BGS)

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corporation, it is not permitted to proceed IFP.
Second, Mr. Benjamin Tacderas, an individual, filled out the instant application to

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proceed IFP, using figures based upon his personal finances. See Doc. No. 2. It is

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unclear whether Mr. Tacderas intends to represent the corporation. Although “parties

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may plead and conduct their own cases personally,” see 28 U.S.C. § 1654, “the right to

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proceed pro se in civil cases is a personal right” and a person appearing pro se cannot

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represent others because doing so constitutes the unauthorized practice of law. C.E. Pope

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Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987); see also Eagle Assocs.

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v. Bank of Montreal, 926 F.2d 1305, 1309 (2d Cir. 1991) (“Corporations and partnerships

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. . . are unable to represent themselves and the consistent interpretation of § 1654 is that

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the only proper representative of a corporation or partnership is a licensed attorney, not

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an unlicensed layman regardless of how close his association with the partnership or

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corporation.”). Thus, to the extent Mr. Tacderas intends to represent the corporation, he

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is prohibited from doing so, unless he is a licensed attorney.

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Accordingly, the Court DENIES Plaintiff’s request to proceed IFP and

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DISMISSES the case without prejudice. To have the case reopened, Plaintiff must, no

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later than January 12, 2018, either: (a) procure licensed legal representation and pay the

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$400 filing fee; or (b) file a complaint as an individual and file a renewed motion for IFP.

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Plaintiff’s motion for a TRO contained in the body of the Complaint is terminated as

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MOOT. Any future request for injunctive relief must be made as a separate motion in

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accordance with the Undersigned’s Civil Chambers Rules.

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IT IS SO ORDERED.

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Dated: December 12, 2017
_____________________________
HON. MICHAEL M. ANELLO
United States District Judge

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17cv2477-MMA (BGS)