Ganey v. County of San Diego
- Proceeding
- district
- Area
- civil
- On appeal
- Ganey v. County of San Diego (2026-02-23) — affirmed — the Ninth Circuit's later ruling on this docket
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court reviewed a pro se complaint filed by parents on behalf of themselves and their minor children, along with a motion to proceed in forma pauperis and a motion to appoint counsel. The court granted the IFP motion, denied the motion to appoint counsel, and dismissed the complaint without prejudice because pro se litigants cannot represent minor children without an attorney.
| What the court decided | The model |
|---|---|
Motion to Proceed In Forma Pauperis granted“Accordingly, Plaintiffs’ motion to proceed IFP [Doc. No. 2] is GRANTED.” | agree with court The order recites that the plaintiffs have less than $35.00 in accounts, one lost a job, and they care for three children on a limited income. This satisfies the requirement to allege poverty with particularity under 28 U.S.C. § 1915(a) and Ninth Circuit precedent. |
Motion to appoint counsel denied“Plaintiffs’ motion to appoint counsel [Doc. No. 3] is DENIED.” | unsure The order does not provide specific reasoning for denying the motion other than the context of the dismissal. However, courts have broad discretion to deny motions for appointment of counsel, and the dismissal without prejudice allows the plaintiffs to re-file with counsel if they choose. |
Complaint dismissed without prejudice“Because the current complaint includes Plaintiffs’ minor children as parties and neither parent is an attorney, Plaintiffs’ complaint is DISMISSED without prejudice.” | agree with court The court correctly applies the rule that the right to proceed pro se is personal and does not extend to representing minor children. Citing Simon v. Hartford Life, Inc. and Johns v. County of San Diego, the court determines that because the parents are not attorneys, they cannot represent their children. Dismissal without prejudice is appropriate to allow the plaintiffs to either amend the complaint to sue only on their own behalf or to retain counsel for the minors. |
The order itself: sound — The order correctly identifies the legal standard for IFP status and applies it to the facts recited. It correctly applies the screening statute to non-prisoner civil litigants. Most importantly, it correctly applies the well-established Ninth Circuit rule that pro se litigants cannot represent minor children. The dismissal without prejudice provides the appropriate remedy to allow the plaintiffs to cure the defect by either amending the complaint or retaining counsel.
Opinion
1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 MICHELLE DIANE GANEY AND Case No.: 23-cv-1448-CAB-AHG MICHAEL JAMES GANEY, JR., 14 ORDER GRANTING MOTION TO Plaintiffs, 15 PROCEED IN FORMA PAUPERIS v. AND DISMISSING COMPLAINT 16 WITHOUT PREJUDICE COUNTY OF SAN DIEGO; Child 17 Welfare Services (CWS), et al, 18 Defendants. [Doc. Nos. 2, 3] 19 20 On August 7, 2023, Michelle Diane Ganey and Michael James Ganey, Jr. 21 (“Plaintiffs”), on behalf of themselves and their minor children, T.E.W, T.A.W., and 22 M.J.G., filed a complaint [Doc. No. 1] against the San Diego County Child Welfare 23 Services and multiple caseworkers for violations of 42 U.S.C. § 1983 and various state 24 laws. Plaintiffs also filed a motion to appoint counsel. [Doc. No. 3]. Plaintiffs did not 25 prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the time of filing; instead, 26 they filed a Motion to Proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 27 28 1 [Doc. No. 2]. For the reasons set forth, the IFP is GRANTED, the motion to appoint 2 counsel is DENIED, and the complaint is DISMISSED without prejudice. 3 I. Motion to Proceed IFP 4 Generally, all parties instituting a civil action in this court must pay a filing fee. See 5 28 U.S.C. § 1914(a); CivLR 4.5(a). However, under 28 U.S.C. § 1915(a), the court may 6 authorize commencement, prosecution, or defense of any suit without payment of fees if 7 the plaintiff submits an affidavit, including a statement of all his or her assets, showing that 8 he or she is unable to pay filing fees or costs. “An affidavit in support of an IFP application 9 is sufficient where it alleges that the affiant cannot pay the court costs and still afford the 10 necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). “[A] 11 plaintiff seeking IFP status must allege poverty with some particularity, definiteness, and 12 certainty.” Id. (internal quotation marks omitted). The granting or denial of leave to 13 proceed IFP in civil cases is within the sound discretion of the district court. Venerable v. 14 Meyers, 500 F.2d 1215, 1216 (9th Cir. 1974) (citations omitted). 15 Here, Plaintiffs represent that they have less than $35.00 in their checking and saving 16 accounts, that one of them just lost their job, and they presently care for three children with 17 a limited income. Plaintiffs’ application sufficiently shows they lack the financial resources 18 to pay filing fees. Accordingly, Plaintiffs’ motion to proceed IFP [Doc. No. 2] is 19 GRANTED. 20 II. Screening of the Complaint Pursuant to 42 U.S.C. § 1915(e)(2)(B) 21 Upon granting a request to proceed IFP, the Court must additionally analyze the 22 sufficiency of the complaint under 28 U.S.C. § 1915. A complaint filed by any person 23 seeking to proceed IFP pursuant to 28 U.S.C. § 1915(a) is subject to sua sponte dismissal 24 if it is “frivolous or malicious; fails to state a claim upon which relief may be granted; or 25 seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 26 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 27 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); see also Chavez v. Robinson, 817 28 F.3d 1162, 1167-68 (9th Cir. 2016) (noting that § 1915(e)(2)(B) “mandates dismissal— 1 if dismissal comes before the defendants are served’). Congress enacted this 2 safeguard because “a litigant whose filing fees and court costs are assumed by the public, 3 ||unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, 4 || malicious, or repetitive lawsuits.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting 5 || Neitzke v. Williams, 490 U.S.C. 319, 324 (1989). 6 Upon an initial screening of the complaint [Doc. No. 1], it appears all claims alleged 7 || against the Defendants are asserted by pro se Plaintiffs on behalf of themselves and their 8 minor children. The Ninth Circuit has found that “the privilege to represent oneself pro se 9 ||. . . is personal to the litigant and does not extend to other parties or entities.” Simon v. 10 || Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008). A parent or guardian cannot bring 11 action on behalf of a minor without obtaining a lawyer. Johns v. County of San Diego, 12 || 114 F.3d 874, 877 (9th Cir. 1997). Because the current complaint includes Plaintiffs’ minor 13 ||children as parties and neither parent is an attorney, Plaintiffs’ complaint is DISMISSED 14 || without prejudice. Plaintiffs’ motion to appoint counsel [Doc. No. 3] is DENIED. 15 No later than October 20, 2023, Plaintiffs may either (1) file an amended complaint 16 ||naming themselves alone as the Plaintiffs; or (2) have counsel appear in this case to 17 represent their minor children. If no counsel appears or an amended complaint is not filed 18 October 20, 2023, the Clerk of Court shall CLOSE this case. 19 20 It is SO ORDERED. 21 Dated: September 20, 2023 € ZL 22 Hon. Cathy Ann Bencivengo 23 United States District Judge 24 25 26 27 28