GONZALEZ v. PETERSON (2025)

MEMORANDUM AND ORDER

For the reasons set forth below, the Court denies without prejudice the Application to Proceed in District Court Without Prepaying Fees or Costs. (Dkt. No. 2.) If Luis Gonzalez wishes to proceed with this action, the Court grants him time to file a signed copy of the complaint, an Application to Proceed in District Court Without Prepaying Fees or Costs, and a copy of his prison account statement.

I. Background

Irma Del Valle (“Del Valle”), a resident of Springfield, Massachusetts, filed a civil rights complaint on behalf of her son Luis Gonzalez (“Gonzalez”), who is in custody at MCI Norfolk. (Dkt. No. 1). With the complaint, Del Valle filed on behalf of Gonzalez an Application to Proceed Without Prepayment of Fees or Costs, also referred to as an application or motion for leave to proceed in forma pauperis. (Dkt. No. 1).

II. Appearances

Del Valle cannot represent her son in this action. Although Gonzalez signed a limited power of attorney that appoints Del Valle as attorney-in-fact, (Dkt. No. 1-3), a non-attorney cannot litigate on behalf of another person. See 28 U.S.C. § 1654 (“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such court, respectively, are permitted to manage and conduct causes therein.”); Local Rule 83.5.5(b) of the Local Rules of the U.S. Dist. Ct. for the Dist. of Mass. (“An individual appearing pro se may not represent any other party and may not authorize any other individual who is not a member of the bar of this district to appear on his or her behalf.”).

An individual may appear in federal court, either “pro se or through legal counsel.” Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982); see also Hootstein v. Amherst-Pelham Reg'l Sch. Comm., 361 F. Supp. 3d 94, 101 (D. Mass. 2019). Because Del Valle does not appear to be an attorney, she cannot represent her son in this action.

III. The Motion for Leave to Proceed In Forma Pauperis

Litigants seeking to proceed in forma pauperis must submit an affidavit that includes a statement of all plaintiff's assets. See 28 U.S.C. § 1915(a)(1). This “affidavit” requirement is satisfied as long as it contains the phrase “under penalty of perjury” and states that the document is true. See 28 U.S.C. § 1746 (unsworn declarations under penalty of perjury); see also Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 205, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993) (discussing function of affidavit requirement). In addition, the “affidavit” must be accompanied by “a certified copy of the trust fund account statement ․ for the 6-month period immediately preceding the filing of the complaint ․ obtained from the appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2).

Unlike other civil litigants, prisoner plaintiffs are not entitled to a complete waiver of the Court's filing fee, even if the Court grants them in forma pauperis status. Based on the information contained in the prison account statement, the Court will direct the appropriate prison official to withdraw an initial partial payment from the plaintiff's account, followed by additional payments on a monthly basis until the entire $350.00 filing fee is paid in full. See 28 U.S.C. § 1915(b)(1)–(2).

Here, Del Valle signed the Application to Proceed Without Prepayment of Fees or Costs on behalf of Gonzalez. Because Gonzalez has not actually signed the application under the penalty of perjury, the application is denied without prejudice.

IV. Conclusion

For the reasons set forth above,

1. Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (Dkt. No. 2) is DENIED WITHOUT PREJUDICE.

2. If Gonzalez wishes to proceed with this action, on or before November 25, 2025, Gonzalez shall (1) file an Application to Proceed in District Court Without Prepaying Fees or Costs with a copy of his prison account statement; and (2) file a complaint with his signature. Failure to comply with these directives will result in the dismissal of this action without prejudice.

3. The clerk shall send to Gonzalez (1) a copy of the complaint so that he can return it to the court signed and dated and (2) an Application to Proceed in District Court Without Prepaying Fees or Costs. Gonzalez’ mailing address is as follows: Luis A. Gonzalez, W117366, MCI-Norfolk, 2 Clark Street, P.O. Box 43, Norfolk, MA 02056.

It is So Ordered.

MASTROIANNI, UNITED STATES DISTRICT JUDGE