McKinley v. County of Fresno ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DOUGLAS MCKINLEY, II, et al., Case No. 1:21-cv-00754-NONE-SAB 12 Plaintiffs, ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS 13 v. WITHOUT PREJUDICE AND REQUIRING PLAINTIFF TO FILE LONG FORM 14 COUNTY OF FRESNO, et al., APPLICATION OR PAY FILING FEE 15 Defendants. (ECF No. 2) 16 TWENTY DAY DEADLINE 17 18 Douglas McKinley, II, and Joanna McKinley (“Plaintiffs”) filed a complaint in this action 19 on May 10, 2021.1 (ECF No. 1.) Plaintiff Douglas McKinley did not pay the filing fee in this 20 action and instead filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 21 1915. However, Plaintiff’s application was not sufficiently completed for the Court to determine 22 if he is entitled to proceed in this action without prepayment of fees. 23 In assessing whether a certain income level meets the poverty threshold under Section 24 1915(a)(1), courts look to the federal poverty guidelines developed each year by the Department 25 1 The Court notes that the caption of the complaint contains that names of additional individuals who did not sign 26 the complaint. Plaintiffs are advised that pro se litigants have no authority to represent anyone other than themselves in this action. Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997); C. E. Pope Equity Trust 27 v. United States, 818 F.2d 696, 697 (9th Cir. 1987). Further, the Ninth Circuit has specifically held that “a parent or guardian cannot bring an action on behalf of a minor child without retaining a lawyer.” Johns, 114 F.3d at 877. 1 of Health and Human Services. See, e.g., Paco v. Myers, No. CIV. 13-00701 ACK, 2013 WL 2 6843057 (D. Haw. Dec. 26, 2013); Lint v. City of Boise, No. CV09-72-S-EJL, 2009 WL 3 1149442, at *2 (D. Idaho Apr. 28, 2009) (and cases cited therein). The 2021 Poverty Guidelines 4 for the 48 contiguous states for a household of two is $17,420.00. 2021 Poverty Guidelines, 5 https://aspe.hhs.gov/poverty-guidelines (last visited May 12, 2021). 6 In his application, Plaintiff Douglas McKinley states that he receives gross wages of 7 $1,466.00 every other week making his monthly income $2,932.00. Therefore, Plaintiff Douglas 8 McKinley’s income is $35,184.00, well above the poverty level for a family of two. Further, 9 Plaintiff Douglas McKinley did not complete the section asking if he receives any other form of 10 income. Additionally, Joanna McKinley also is named as a plaintiff and signed the complaint 11 but did not file an application to proceed in forma pauperis. 12 Accordingly, the Court will order the plaintiffs to complete and file an Application to 13 Proceed in District Court Without Prepaying Fees or Costs (Long Form) – AO 239. If Plaintiffs 14 are unwilling to complete and submit the long form application, Plaintiffs must pay the filing fee 15 in full. 16 Based upon the foregoing, it is HEREBY ORDERED that: 17 1. Plaintiff Douglas McKinley’s application to proceed in forma pauperis is 18 DENIED without prejudice; 19 2. The Clerk of the Court is directed to forward two (2) Applications to Proceed in 20 District Court Without Prepaying Fees or Costs (Long Form) – AO 239 to 21 Plaintiffs; 22 3. Within twenty (20) days of the date of this order, Plaintiffs shall either (1) pay 23 the $402.00 filing fee for this action, or (2) complete and file the enclosed 24 Application to Proceed in District Court Without Prepaying Fees or Costs (Long 25 Form) – AO 239; and 26 / / / 27 / / / 1 4. If Plaintiffs fail to comply with this order, this action shall be dismissed for failure 2 to pay the filing fee and failure to comply with a court order. 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ May 12, 2021 ‘ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28