Opinion
Civ. No. 6:21-cv-00393-AA
04-07-2021
ZYLER SEAN NEUTS; KATHERINE JAZZMINE LIBBY, Plaintiffs, v. OREGON VETERANS ADMINISTRATION, Defendant.
OPINION & ORDER
Pro Se Plaintiffs Zyler Sean Neuts and Katherine Jazzmine Libby seek leave to proceed in forma pauperis ("IFP") in this action. ECF No. 2. Plaintiffs also seek appointment of pro bono counsel. ECF No. 3. For the reasons set forth below, the Complaint, ECF No. 1, is dismissed with leave to amend and Plaintiffs shall be given thirty (30) days to file an amended complaint with the assistance of a representative, guardian, or next friend. The Motion for Appointment of Pro Bono Counsel is DENIED with leave to refile. The Court shall defer ruling on Plaintiffs' IFP petition pending submission of an amended complaint.
LEGAL STANDARD
Generally, all parties instituting any civil action in United States District Court must pay a statutory filing fee. 28 U.S.C. § 1914(a). However, the federal IFP statute, 28 U.S.C. § 1915(a)(1), provides indigent litigants an opportunity for meaningful access to federal courts despite their inability to pay the costs and fees associated with that access. To authorize a litigant to proceed IFP, a court must make two determinations. First, a court must determine whether the litigant is unable to pay the costs of commencing the action. 28 U.S.C. § 1915(a)(1). Second, it must assess whether the action is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune to such relief. 28 U.S.C. § 1915(e)(2)(B).
In regard to the second of these determinations, district courts have the power under 28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the complaint on the defendants, and must dismiss a complaint if it fails to state a claim. Courts apply the same standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss under the federal pleading standards, the complaint must include a short and plain statement of the claim and "contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully." Id. The court is not required to accept legal conclusions, unsupported by alleged facts, as true. Id.
Pro se pleadings are held to less stringent standards than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). That is, the court should construe pleadings by pro se plaintiffs liberally and afford the plaintiffs the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Additionally, a pro se litigant is entitled to notice of the deficiencies in the complaint and the opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. Id.
DISCUSSION
Plaintiffs Zyler Sean Neuts and Katherine Jazzmine Libby are brother and sister. The Complaint alleges that their parents, Naomi and Derek Neuts, divorced in 2017 and an Oregon state court entered a judgment in favor of their mother, which included a child support obligation to be drawn from Derek Neuts's veteran benefits. Compl. 6. This obligation was not paid and Plaintiffs and their mother have been unsuccessfully pursuing payment through the Oregon Department of Justice, the VA, and appeals to the offices of Senator Wyden.
Defendant in this action is identified as Oregon Veterans Administration. While this action might be directed at the Oregon Department of Veterans' Affairs, a state agency, the Complaint appears to allege that Defendant is a federal agency. Compl. 6. The Court therefore understands that the intended Defendant is the United States Department of Veterans Affairs.
Plaintiffs bring claims for (1) failure to pay legal child support obligations pursuant to 18 U.S.C. § 228; (2) criminal contempt pursuant to 18 U.S.C. § 402; and (3) aiding and abetting, for which Plaintiffs cite 18 U.S.C. § 2. Federal criminal statutes, such as those cited by Plaintiffs, do not generally create a private right of action, or provide a basis for civil liability. Abcarian v. Levine, 972 F.3d 1019, 1026 (9th Cir. 2020). In the specific case of the claim for failure to pay child support, the Second Circuit has held that although 18 U.S.C. § 228 "was intended to benefit custodial parents and children victimized by non-payment of state-ordered support obligations, and although pursuit of private actions might further the goals of the [Child Support Recovery] Act, the Act does not create a federal right but merely criminalizes conduct that infringes the state-created rights," and does not provide a private right of action. Alaji Salahuddin v. Alajii, 232 F.3d 305, 311-12 (2d Cir. 2000). The Court concludes that the Complaint, as pleaded, fails to state a claim.
Next, the Court notes that the Complaint alleges Katherine Libby is a minor. Compl. 12 ("Katherine will turn 21 in 2026."). Although Zyler Neuts's age is not alleged in the Complaint, Plaintiffs' IFP petition and Motion for Appointment of Pro Bono Counsel indicate that he is also a minor. IFP Pet. 2 ("Name of last employer: Never had one, minor."); Pl. Mot. 1 ("I am a minor and do not have income."). To maintain a suit in federal court, a child must be represented by a competent adult. C.M by and through McShane v. Beaverton Sch. Dist. 48J, Case No. 3:17-cv-1662-YY, 2019 WL 1571280, at *1 (D. Or. April 11, 2019) (quoting T.W. by Enk v. Brophy, 124 F.3d 893, 895 (7th Cir. 1997); see also Fed. R. Civ. P. 17(c) (providing for minors to sue or defend through representatives, next friends, or guardians ad litem). As minors, Plaintiffs cannot maintain this action on their own, but must appear either through a representative, a next friend, or a guardian. The Court concludes that the proper remedy is dismissal with leave to amend, to allow Plaintiff to seek guardians and/or representatives to bring this action on their behalf.
Finally, the Court denies the Motion for Appointment of Counsel. There is no constitutional right to counsel in a civil case. United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986). However, pursuant to § 1915(e), this Court has discretion to request volunteer counsel for indigent parties in exceptional circumstances. Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In this case, it would be inappropriate to appoint counsel for several reasons. First, as discussed above, it appears that Plaintiffs are minors who must appear through representatives, guardians, or next friends. Second, Plaintiffs have failed to state a claim, necessitating dismissal with leave to amend. And finally, the Court notes that Plaintiffs have not filled in the portion of the pro bono counsel form that asks the applicant to describe their diligent but unsuccessful efforts to locate counsel. This suggests that Plaintiffs have, perhaps, not attempted to locate counsel on their own.
CONCLUSION
For the reasons set forth above, the Complaint, ECF No. 1, is DISMISSED with leave to amend. Plaintiffs shall have thirty (30) days in which to file an amended complaint with the assistance of a representative, guardian, or next friend. Plaintiffs are advised that failure to timely file an amended complaint will result in entry of a judgment of dismissal without prejudice. Plaintiffs' Motion for Appointment of Pro Bono Counsel, ECF No. 3, is DENIED with leave to refile. The Court will defer ruling on Plaintiffs' IFP petition, ECF No. 2, pending submission of an amended complaint.
It is so ORDERED and DATED this 7th day of April 2021.
/s/Ann Aiken
ANN AIKEN
United States District Judge