Opinion
5:17-CV-00510 (BKS/TWD)
06-13-2017
KIPLIND L. CRUZ, Individually and on Behalf of his Two Minor Children, Plaintiff, v. THE STATE OF NEW YORK, et al., Defendants.
APPEARANCES: KIPLIND L. CRUZ Individually and on Behalf of his Two Minor Children Plaintiff, pro se 5825 Townline Road Cincinnatus, NY 13040
APPEARANCES: KIPLIND L. CRUZ
Individually and on Behalf of his
Two Minor Children
Plaintiff, pro se
5825 Townline Road
Cincinnatus, NY 13040 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER
Plaintiff Kipland L. Cruz, Individually and on behalf of his two minor children, has submitted for filing by the Clerk: (1) a notice of removal to federal court, pursuant to 28 U.S.C. § 1443, naming twelve Respondents involved in child support, child custody, and child abuse proceedings in state court (Dkt. No. 1); and a separate federal court civil rights complaint brought under 42 U.S.C. §§ 1983, 1985, and 1986. (Dkt. No. 1-2.) The Clerk has sent the notice of removal and civil rights complaint to the Court for initial review under 28 U.S.C. § 1915(e). Also before the Court is Plaintiff's application for leave to proceed in forma pauperis ("IFP Application"). (Dkt. No. 2.)
I. IFP Application
A court may grant in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1) (2006). After reviewing Plaintiff's IFP Application (Dkt. No. 2), the Court finds that he meets this standard. Therefore, Plaintiff's IFP Application is granted.
II. NOTICE OF REMOVAL AND FEDERAL COURT CIVIL RIGHTS COMPLAINT
A. NOTICE OF REMOVAL
Plaintiff has labeled his notice of removal as a "Petition for Writ of Habeas Corpus in United States District Court pursuant of 18 USC 1512(b)(3) & 18 USC §1513(b) [&] 18 USC § 242 [and] Defendants Federal Removal from State of New York County of Cortland, Chenango, Onondaga, New York State Cortland County Combined Court to US District Court pursuant to 28 U.S.C. § 1443." (Dkt. No. 1 at 1.) The various state court proceedings Plaintiff seeks to remove to federal district court primarily involve unpaid child support, child abuse claims, and a custody dispute between Plaintiff and his ex-wife Nicole A. Cruz. (See generally Dkt. Nos. 1, 1-1, 1-3.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Plaintiff seeks appropriate declaratory and injunctive relief. Id. at 44.
B. CIVIL RIGHTS COMPLAINT
In his federal civil rights complaint under 42 U.S.C. §§ 1983, 1985, and 1986, Plaintiff appears to have named thirty or more defendants whom Plaintiff presumably believes to have been involved in matters related, either directly or indirectly, to the state court proceedings. (See Generally Dkt. No. 1-2.) Included in the complaint are allegations that Plaintiff's minor children have been subjected to repeated sexual abuse, mental and emotional abuse, and maltreatment by their mother, and that false charges of child abuse and child exploitation have been placed against Plaintiff by certain of the defendants. Id. at 15. Plaintiff has also asserted claims for unfair employment practices and discrimination. Id. at 29. In addition to his civil rights claims under §§ 1983, 1985, and 1986, Plaintiff has asserted claims under the Fair Housing Act, 42 U.S.C. §§ 3602-3631; the Violent Crime Control and Law Enforcement Act, 42 U.S.C. § 14141; and two criminal statutes, 18 U.S.C. § 245 (Federally protected activities) and § 2258 (sexual exploitation of children).
Plaintiff seeks damages in the amount of $250,000 per defendant for himself and each of his minor children for a total of $750,000 per defendant. Id. at 29. He seeks an additional $60,000,000 in damages for irreparable damages, retirement, and the seizure of properties, along with declaratory and injunctive relief. Id. at 30-31.
III. PLAINTIFF'S ATTEMPTED PRO SE REPRESENTATION OF HIS MINOR CHILDREN
When a Plaintiff seeking relief from an officer or employee of a governmental entity meets the financial criteria for commencing a case in forma pauperis, the Court must conduct an initial review of the sufficiency of the allegations set forth in the complaint under 28 U.S.C. §§ 1915(e) before he can proceed. Section 1915(e) directs that when a plaintiff proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
To determine whether an action is frivolous, a court must look to see whether the complaint "lacks an arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. 319, 327 (1989).
The Court finds initial review to be premature in this case. A litigant in federal court has the right to act as his own counsel. See 28 U.S.C. § 1654 (1982) ("in all courts of the United States, the parties may plead and conduct their own cases personally or by counsel. . . ."). Morever, Rule 17(c) of the Federal Rules of Civil Procedure authorizes a general guardian to bring suit on behalf of a minor. Fed.R.Civ.P. 17(c)(1)(A). However, it is well established that "[a] person who has not been admitted to the practice of law may not represent anybody other than himself." Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010) (citing Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007) and 28 U.S.C. § 1654). The prohibition extends to non-lawyer parents seeking to represent their children. See Cheung v. Youth Orchestra Foundation of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990) ("It goes without saying that it is not in the interest of minors or incompetents that they be represented by non-attorneys. Where they have claims that require adjudication, they are entitled to trained legal assistance so their rights may be fully protected."); KLA v. Windham Southeast Supervisory Union, 348 F. App'x 604, 605-05 (2d Cir. 2009) (the prohibition on unlicensed laymen representing anyone other than themselves extends to non-lawyer parents seeking to represent their children); Panzardi v. Jensen, No. 13-CV-441 (MKB), 2014 WL 905546, at * 2 (E.D.N.Y. March 7, 2014) (non-lawyer parents are prohibited from representing their children).
A copy of the unpublished decision cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Because Plaintiff, a non-attorney, cannot proceed pro se on behalf of his minor children, initial review of the notice of removal and federal civil rights complaint cannot be undertaken at this point. See Cheung, 906 F.2d at 62 (remand by Second Circuit of a case dismissed sua sponte on the grounds that a non-attorney parent must be represented by counsel in bringing an action on behalf of his or his child, stating: "We believe that no issues concerning this litigation should be decided until the counsel issue is resolved. We remand to give [plaintiff] an opportunity to retain counsel or to request the appointment of counsel. . . . If [plaintiff] does not retain counsel and if the district declines to appoint counsel, the complaint should be dismissed without prejudice.").
It is not possible at this point for the Court to separate out claims that may be solely those of the Plaintiff with sufficient certainty to ensure that initial review of those claims would not ultimately harm the interests of his as yet unrepresented children. Therefore, the Court will order that the case be stayed for ninety days in order to give Plaintiff time to retain counsel with regard to all claims being pursued on behalf of his minor children, to move for appointment of counsel, or file an amended notice of removal and amended complaint deleting all claims asserted on behalf of his minor children. If there is no appearance by counsel on the claims Plaintiff is pursuing on behalf of his minor children, no motion filed for appointment of counsel, and no amended notice of removal and/or complaint deleting all claims asserted on behalf of the minor children filed on or before September 11, 2017, the Court will issue a Report-Recommendation to the assigned District Court Judge recommending that the notice of removal and federal civil rights complaint be dismissed without prejudice.
There is no legal right to counsel in civil cases. Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986). However, 28 U.S.C. § 1915 specifically provides that a court may request an attorney to represent any person "unable to afford counsel." 28 U.S.C. § 1915(e)(1). The Court cautions Plaintiff that while counsel may be appointed in appropriate circumstances, see Fed.R.Civ.P. 17(c), 28 U.S.C. § 1915(e)(1), the appointment of counsel is far from a sure thing, particularly where, as in this case, there is not a fully developed record from which an assessment of the merits of the case can be made. See Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (court must look to the likelihood of merit of the underlying dispute in determining whether to appoint counsel); Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 174 (2d Cir. 1989) (per curiam) (even where a claim is not frivolous, counsel should not be appointed in a case where the merits are thin and a plaintiff's chance of prevailing is poor). --------
WHEREFORE, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is GRANTED; and it is further
ORDERED that this case be stayed for ninety days in order to give Plaintiff time to retain counsel with regard to all claims being pursued on behalf of his minor children, to move for appointment of counsel, or to file an amended notice of removal and amended complaint deleting all claims asserted on behalf of Plaintiff's minor children. If the Court does not receive notice by September 11, 2017, that Plaintiff has taken one of those actions, the Court will issue a Report-Recommendation to the assigned District Court judge recommending that the notice of removal and federal civil rights complaint be dismissed without prejudice; and it is further
ORDERED that the Clerk serve copies of this Order and the unpublished decision in Panzardi v. Jensen, No. 13-CV-441 (MKB), 2014 WL 905546 (E.D.N.Y. March 7, 2014) in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
IT IS SO ORDERED.
Dated: June 13, 2017
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge