Dudash v. Andelica

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT J. DUDASH, et al., Case No.: 3:25-cv-1269-CAB-BLM 12 Plaintiffs, ORDER: 13 v. (1) DENYING IFP APPLICATION; 14 ANDELICA ULLOA, et al., 15 Defendants. (2) DISMISSING COMPLAINT;

16 (3) DENYING LEAVE TO 17 ELECTRONICALLY FILE DOCUMENTS; and 18 19 (4) DENYING IMPROPER MOTION 20 [Doc. Nos. 1, 2, 3, 6] 21 22 On May 16, 2025, Plaintiff Robert Dudash, proceeding pro se, filed a complaint 23 against nine different Defendants, including Child Protective Services, state judges, and 24 the State of California, alleging that they kidnapped his children. [Compl. at 5.] Plaintiff 25 also filed for leave to electronically file documents. [Doc. No. 3.] At the time of filing the 26 complaint, Plaintiff did not prepay the civil filing fees 28 U.S.C. § 1914(a) requires. 27 Instead, he filed a motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 28 1915(a). [Doc. No. 2.] Then, on June 11, 2025, Plaintiff improperly filed another motion 1 which simply reasserted the claim in his complaint. [Doc. No. 6.] For the reasons 2 discussed below, the Court DENIES Plaintiff’s IFP motion, DISMISSES his complaint 3 with prejudice, DENIES his motion for leave to electronically file documents as moot, and 4 DENIES his improperly filed motion as moot. 5 I. Motion to Proceed IFP 6 Generally, all parties instituting a civil action in this Court must pay a filing fee. See 7 28 U.S.C. § 1914(a); CivLR 4.5(a). But under 28 U.S.C. § 1915(a), the Court may 8 authorize any suit’s commencement, prosecution, or defense without payment of fees if the 9 plaintiff submits an affidavit, including a statement of all his or her assets, showing he or 10 she is unable to pay filing fees or costs. “An affidavit in support of an IFP application is 11 sufficient where it alleges that the affiant cannot pay the court costs and still afford the 12 necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). “[A] 13 plaintiff seeking IFP status must allege poverty with some particularity, definiteness and 14 certainty.” Id. (internal quotation marks omitted). Granting or denying leave to proceed 15 IFP in civil cases is within the district court’s sound discretion. Venable v. Meyers, 500 16 F.2d 1215, 1216 (9th Cir. 1974). 17 Plaintiff lists his income and assets, including any public assistance, at $0. [Doc. 18 No. 2 at 1–3.] The only monthly expense he identifies is $200 for operating an unknown 19 business, profession, or farm. [Id. at 4–5.] Plaintiff does not explain how he lives without 20 an income nor spending anything on rent, food, clothes, transportation, etc. Accordingly, 21 Plaintiff’s motion to proceed IFP is DENIED. Should Plaintiff choose to re-file, he should 22 accurately list his income and expenses and explain any irregularities. 23 II. Screening of the Complaint Pursuant to 42 U.S.C. § 1915(e)(2)(B) 24 A plaintiff seeking to proceed IFP pursuant to 28 U.S.C. § 1915(a) is subject to sua 25 sponte dismissal if the complaint is “frivolous or malicious; fails to state a claim on which 26 relief may be granted; or seeks monetary relief against a defendant who is immune from 27 such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 28 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); 1 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only 2 permits but requires a district court to dismiss an in forma pauperis complaint that fails to 3 state a claim.”). Congress enacted this safeguard because “a litigant whose filing fees and 4 court costs are assumed by the public . . . lacks an economic incentive to refrain from filing 5 frivolous, malicious, or repetitive lawsuits.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) 6 (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). 7 Plaintiff Dudash alleges that on December 23, 2021, Defendants Child Protective 8 Services and Child Welfare Services kidnapped Plaintiff’s two children. [Compl. at 5.] 9 Plaintiff brings his claim under 18 U.S.C. § 242—a criminal statute that concerns violations 10 of civil rights under color of law. 18 U.S.C. § 242; see also Del Elmer v. Metzger, 967 F. 11 Supp. 398, 403 (S.D. Cal. 1997). The statute does not provide a civil cause of action. See 12 Del Elmer, 967 F.Supp. at 403. Moreover, Plaintiff seeks to bring his complaint on behalf 13 of his two children who he lists as proceeding pro se. [Compl. at 1, 7.] Plaintiff may not 14 serve as his children’s counsel nor can minors appear in a pro se capacity. See Johns v. 15 Cnty. of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (“[A] parent or guardian cannot 16 bring an action on behalf of a minor child without retaining a lawyer.”). Accordingly, 17 Plaintiff’s complaint is DISMISSED with prejudice. 18 III. Motion for Leave to Electronically File Documents; Improperly Filed 19 Motion 20 As Plaintiff’s IFP application is denied and his complaint is dismissed, the Court 21 DENIES his motion for leave to electronically file documents, [Doc. No. 3], and his 22 improperly filed motion, [Doc. No. 6], as moot. 23 // 24 // 25 // 26 // 27 // 28 // l IV. Conclusion 2 Plaintiff's IFP application is DENIED, his complaint is DISMISSED with 3 || prejudice, his motion for leave is DENIED as moot, and his improperly filed motion is 4 ||DENIED as moot. 5 It is SO ORDERED. 6 7 Dated: June 11, 2025 □ Z 8 Hon. Cathy Ann Bencivengo ? United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28