Opinion
C/A 4:23-5085-JD-TER
04-23-2024
Lumetric Cameron, individually and o/b/o M.C., Plaintiff, v. Florence County School District One Board of Trustees; Richard O'Malley; Brian Denny; Julie Hicks; Shand Josey, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, UNITED STATES MAGISTRATE JUDGE
Plaintiff Lumetric, proceeding pro se, paid the filing fee. Plaintiff originally attempted to pursue claims on behalf of her minor child. As explained below, claims on behalf of the minor child may not be pursued pro se. By order of the court, Plaintiff was given a 45 day time period to retain counsel for the minor child. The time has run and Plaintiff did not avail herself of the opportunity to retain counsel for the minor child. However, Plaintiff is pursuing some claims individually.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for her, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
Moreover, even when the filing fee is paid, the court possesses the inherent authority to ensure that a plaintiff has standing, that federal jurisdiction exists, and that a case is not frivolous. Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012)(per curiam).
DISCUSSION
The body of the complaint makes clear there are two individual plaintiffs. Plaintiffs, proceeding pro se, are alleged to be the mother and minor child M.C. (ECF No. 1 at 1). Allegations are that the minor child graduated without a 504 plan. (ECF No. 1). Plaintiff parent Lumetric alleges her rights to participate in her child's educational process have been violated. Plaintiff alleges there were violations of Section 504 and IDEA. (ECF No. 1 at 7). Plaintiff requests only monetary damages. (ECF No. 1 at 10).
Federal courts are courts of limited subject matter jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Because federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir.1999), citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337, 327 (1895). Federal courts have an “independent obligation” to investigate the limits of its subject-matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). As such, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, “and to dismiss the action if no such ground appears.” Bulldog Trucking, 147 F.3d at 352; see also Fed.R.Civ.P. 12(h)(3). A plaintiff must allege in his pleading the facts essential to show jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182 (1936). To this end, Federal Rule of Civil Procedure 8(a)(1) requires that the complaint provide “a short and plain statement of the grounds for the court's jurisdiction.” If, however, the complaint does not contain “an affirmative pleading of a jurisdictional basis, the federal court may find that it has jurisdiction if the facts supporting jurisdiction have been clearly pleaded.” Pinkley, Inc., 191 F.3d at 399 (citing 2 Moore's Federal Practice § 8.03[3] (3d ed.1997).
District courts exercise two types of subject matter jurisdiction: federal question jurisdiction pursuant to 28 U.S.C. § 1331 and diversity jurisdiction pursuant to 28 U.S.C. § 1332. The diversity statute requires complete diversity of parties and an amount in controversy in excess of seventy-five thousand dollars ($75,000.00). 28 U.S.C. § 1332(a). Complete diversity of parties in a case means that no party on one side may be a citizen of the same State as any party on the other side. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978). As to § 1332, Plaintiff cannot garner diversity jurisdiction because all parties are of South Carolina citizenship.
As to federal question jurisdiction pursuant to 28 U.S.C. § 1331, Plaintiff's jurisdictional pleading is generalized and without support: “This Court has jurisdiction over the parties and subject matter of this action, and venue is proper in this Court because this case concerns a controversy that occurred in Florence County, and the four Defendants were employees of Florence County School District One at the time of this controversy.” (ECF No. 1 at 2). Gleaning from Plaintiff's Complaint, Plaintiff cites to the 504 and IDEA. Plaintiff also cites § 1983 and constitutional amendments, as well as some state statutes. (ECF No. 1).
As to the claims of the unrepresented minor child, the Fourth Circuit Court of Appeals has held: “To ensure minors' rights are vigorously and competently protected, we have squarely held that non-attorney parents are barred from representing their children in federal court.” M.D. v. Sch. Bd. of City of Richmond, 560 Fed.Appx. 199, 202 (4th Cir. 2014)(emphasis added). “The right to litigate for oneself, however, does not create a coordinate right to litigate for others.” Myers v. Loudoun Cty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005). A minor's rights are best protected by the opportunity to retain counsel. M.D., 560 Fed.Appx. at 203. Courts within the Fourth Circuit have consistently required parents to secure counsel to litigate claims asserted on behalf of a minor child. See B.D. ex rel. Dragomir v. Griggs, No. 1:09-cv-439, 2010 WL 2775841, at *5 (W.D. N.C. July 13, 2010), aff'd, 419 Fed.Appx. 406 (4th Cir. 2011); Bernard v. Sch. Bd. of Norfolk, 58 F.Supp.2d 669, 674 (E.D. Va. 1999); Catharine W. v. Sch. Bd. of Va. Beach, No. 2:17-cv-645, 2018 WL 4474688, at *5 (E.D. Va. Sept. 4, 2018). Plaintiff was already given 45 days to secure counsel if she desired to continue to pursue claims of the minor child. (ECF No. 7). Plaintiff has no standing to pursue claims of the minor child pro se and those claims are dismissed without prejudice.
To have standing, a plaintiff must demonstrate: (1) that he or she has suffered an “injury in fact” that is concrete, particularized, and actual or imminent; (2) that there is a causal connection between the injury and the conduct complained of; and (3) that it is likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In addition to the constitutional standing requirements, the federal judiciary has developed a prudential limitation on standing where the plaintiff “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975).
Plaintiff lists causes of action as 1) First Amendment, § 1983, South Carolina Constitution(within the heading, Plaintiff alleges violations of 504 and IDEA); 2) “gross negligence, neglect of duty, breach of superintendent contract” (state statutes cited, no claim plead that can garner federal question subject matter jurisdiction); 3) “violation of the due process clause of the Fourteenth Amendment for denial of impartial hearing,” § 1983(under this heading Plaintiff alleges denial of a 504 hearing; 4) “violation of the Equal protection Clause of the Fourteenth Amendment to the U.S. Constitution for disparate racial treatment,” § 1983(alleging defendants met with white parents for 504 complaints); and 5) “breach of fiduciary duty” (504 cited). (ECF No. 1).
Plaintiff parent Lumetric refers many times to the 504 Rehabilitation Act and wanting a 504 plan and a 504 meeting. Plaintiff alleges that her child graduating without a 504 plan violated her parental civil rights.
Section 1983, the IDEA, and 504 are all different. Parents enjoy rights under the IDEA and are entitled to prosecute IDEA claims on their own behalf. Winkelman v. Parma City School Dist., 550 U.S. 516 (2007). The right to a free and appropriate public education is created by the IDEA and is not a constitutional right. See Sellers by Sellers v. Sch. Bd. of the City of Manassas, Va., 141 F.3d 524, 530 (4th Cir.1998). In Sellers, the Fourth Circuit held that “parties may not sue under section 1983 for an IDEA violation” “[b]ecause IDEA provides a comprehensive remedial scheme for violations of its own requirements.” Id. at 529. Plaintiff parent cannot garner subject matter jurisdiction under a § 1983 action based on IDEA allegations.
Courts have found that Winkelman does not translate into a broad right to pursue any type of claim as a parent and Winkelman only referenced the IDEA and it would be improper to extend its holding to Section 504 claims. D.N. v. Louisa Cnty. Pub. Sch., 156 F.Supp.3d 767, 773-74 (W.D. Va. 2016)(collecting cases). A 504 claim is a claim of the child. Id. Moreover, a plaintiff seeking relief under 504 must show that the discriminatory conduct was solely by reason of Plaintiff's disability, not race. Plaintiff Lumetric as pro se parent does not have standing to pursue a 504 claim in her own right and as already discussed cannot pursue such claim pro se on behalf of her child.
An IDEA claim is the only claim Plaintiff as a pro se parent individually could pursue generally under the facts alleged. However, Plaintiff alleges her child graduated and Plaintiff only seeks monetary damages. The IDEA does not provide for monetary damages. Reid v. Prince George's Cnty. Bd. of Educ., 60 F.Supp.3d 601, 607-608 (D. Md. 2014); MTJH v. Spartanburg Cnty. Dist. 7, No. 7:19-CV-00981-BHH-JDA, 2019 WL 2331645, at *3 (D.S.C. May 8, 2019), report and recommendation adopted sub nom., 2019 WL 2324586 (D.S.C. May 31, 2019)(collecting cases); Sellers, 141 F.3d at 525. As a matter of law, monetary damages are not available for IDEA violations. By requesting relief unavailable by statute and case law, Plaintiff's IDEA claim is legally frivolous. There is no remedy under the Act where monetary damages are sought and the child has graduated. Swenson v. Lincoln Cnty. Sch. Dist. No. 2, 260 F.Supp.2d 1136, 1148 (D. Wyo. 2003).
Plaintiff has not garnered federal question jurisdiction with a legally nonfrivolous claim which she can pursue pro se individually on her own behalf as a parent. This court lacks subject matter jurisdiction over this action.
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case without prejudice and without issuance and service of process for lack of subject matter jurisdiction over this action.
See Platts v. O'Brien, 691 Fed.Appx. 774 (4th Cir. June 22, 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (“A dismissal for ... [a] defect in subject matter jurisdiction[ ] must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.”)..
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).