Opinion
C. A. 7:22-cv-02977-DCC-KFM
01-11-2023
Jane Doe, Plaintiff, v. Blacksburg Middle School, Cherokee County School District, Cherokee County School District Board of Trustees, Cherokee County School District Office of Superintendent, Dana Fall, and Carl Carpenter, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
Amanda Bostedo, who appears to be a parent to the plaintiff Jane Doe, brought this action pro se seeking damages from the defendants in the Cherokee County Court of Common Pleas at Case Number 2022-CP-11-0499 (doc. 1-1 at 5-15). The matter was removed to this court on September 6, 2022 (doc. 1). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
Upon review of Ms. Bostedo's complaint after removal, on September 7, 2022, the undersigned issued an order noting that Ms. Bostedo could not bring claims pro se on behalf of Jane Doe (doc. 12 (citing Myers v. Loudon Cnty. Pub. Sch., 418 F.3d 395, 400-01 (4th Cir. 2005) (noting that although an individual has the right to represent himself/herself by statute-28 U.S.C. § 1654-that right does not “create a coordinate right to litigate for others” as well as that “non-attorney parents generally may not litigate the claims of their minor children in federal court”))). As such, the order instructed Ms. Bostedo to find counsel licensed in this court to represent Jane Doe (id.). The order provided Ms. Bostedo with twenty-one days to find counsel to represent Jane Doe and have a notice of appearance filed (id. at 1). The order warned Ms. Bostedo that if no attorney filed a notice of appearance in this case by the deadline, the case would be forwarded to the assigned United States District Judge with a recommendation that it be dismissed (id.).
In response to the court's order, instead of finding counsel to represent Jane Doe in this action, Ms. Bostedo filed a motion to amend and supplement the complaint in order to add a claim of her own under the Individuals with Disabilities Education Act (“IDEA”) for denial of a right to a free appropriate public education (“FAPE”) as well as asserting that she was entitled to represent Jane Doe in this action pursuant to Winkelman ex rel. Winkelman v. Parma City School District, 550 U.S. 516 (2007) (doc. 18). On September 20, 2022, the undersigned issued an order denying Ms. Bostedo's motion with leave to refile because she failed to file a proposed amended complaint and instructing the defendants that no answers or responsive pleadings were due at that time (doc. 20). Ms. Bostedo then filed a second motion to amend the complaint on September 23, 2022 (doc. 22). Attached to the motion was a proposed amended complaint (doc. 22-1). By order entered September 29, 2022, the undersigned denied the plaintiff's motion, noting that Ms. Bostedo's proposed amended complaint failed to state a plausible claim that she could bring pro se in this court and providing Ms. Bostedo with additional time to have an attorney file a notice of appearance in order to represent Jane Doe in this action (doc. 25). In response, Ms. Bostedo filed a motion seeking additional time to find an attorney to represent Jane Doe in this action (doc. 28). The undersigned granted Ms. Bostedo's motion, giving her until December 29, 2022, to find counsel licensed in this court to represent Jane Doe (doc. 32). Ms. Bostedo was warned that if no attorney filed a notice of appearance on Jane Doe's behalf by the deadline, the case would be forwarded to the assigned United States District Judge with a recommendation that it be dismissed (id.). To date, the deadline has passed and no attorney has entered an appearance on Jane Doe's behalf.
ALLEGATIONS
In the original complaint filed in this action - the operative complaint because Ms. Bostedo's motions to amend were denied - Ms. Bostedo alleges that she is the mother of Jane Doe, who, during the relevant time, was a student in the Cherokee County School District with an Individualized Educational Plan (“IEP”) (doc. 1-1 at 5-15). Ms. Bostedo contends that Jane Doe was assaulted at Blacksburg Middle School in 2021 by another student in a restroom (id. at 8). Jane Doe reported the assault to a youth counselor in 2022, and Ms. Bostedo reported the assault to police (id.). Ms. Bostedo also alleges that during 2022, Jane Doe went to the band room with another student, and a high school-aged male was let into the building and tried to convince Jane Doe to do a video call with Jane Doe's sister (id. at 8-9). Jane Doe was distraught because of this incident and was unable to finish her state testing (id. at 9). Ms. Bostedo reported these incidents to the defendants, but the incidents were not investigated, and Ms. Bostedo had to report the incident to the authorities (id. at 9-10). Jane Doe did not return to school because of her emotional distress after the incidents (id. at 10). Ms. Bostedo picked up Jane Doe's schoolwork during this time, but the defendants would not provide a virtual education option for Jane Doe while she was unable to return to school (id.). After investigating the incident, although no one contacted Jane Doe, the defendants indicated to Ms. Bostedo that the remedy was to reinforce and reiterate staff safety protocols (id.). Ms. Bostedo alleges that the defendants did not take the investigation seriously because Jane Doe's sister lives with one of the School Board members (id. at 10-11).
Ms. Bostedo's first cause of action is entitled “Sexual Assault of a Minor due to Negligence of Supervision Violation of Civil Rights” (id. at 11-12). Ms. Bostedo alleges that Jane Doe's assault occurred because the defendants failed to properly supervise school property (id.). Due to the assault, Jane Doe has suffered from mental and physical injuries (id.). Ms. Bostedo's second cause of action is entitled “Violation of Safe School Climate due to Negligence of Supervision” (id. at 12). Ms Bostedo contends that the lack of supervision by the defendants violated Jane Doe's right to be provided a safe school environment (id.). Due to this violation, Jane Doe does not trust the defendants to protect Jane Doe, which has caused Jane Doe mental health issues, health issues, and reasonable fear (id.). Ms. Bostedo's third cause of action is entitled “Failure to Contact Proper Authorities” based upon South Carolina Code § 59-63-130(2)(b) (id. at 12-13). Ms. Bostedo alleges that because the defendants failed to contact the authorities, Jane Doe suffered extreme anxiety and fear (id.).
Ms. Bostedo's fourth cause of action is entitled “Violation of Rights as a Person with a Disability under [the Americans with Disabilities Act (“ADA”)] and IDEA” (id. at 13). Ms. Bostedo alleges that Jane Doe was not offered special accommodations for her to continue school after the incidents in question (id.). Due to the lack of accommodations, Jane Doe missed yearbook day and a field trip (id.). The lack of accommodations also caused Jane Doe to have to start a new school (id.). Ms. Bostedo's fifth cause of action is entitled “Discrimination and Unbiased Representation” (id. at 14). Ms. Bostedo alleges that the defendants have acted unethically in housing Jane Doe's sister and not protecting Jane Doe from the incident in the band room (id.). For relief, Ms. Bostedo seeks money damages and for Jane Doe to attend private school or school in another district at the defendants' expense (id. at 14-15).
APPLICABLE LAW AND ANALYSIS
Upon review of the complaint filed in this case, as outlined above, the undersigned recommends that this case be dismissed because Ms. Bostedo is not permitted to represent Jane Doe, her minor child, in this action. The Fourth Circuit Court of Appeals has held that “non-attorney parents generally may not litigate the claims of their minor children in federal court.” Myers, 418 F.3d at 401. However, in Winkelman, the United States Supreme Court held that parents, such as Ms. Bostedo, can allege an individual claim (on his/her own behalf) under the IDEA regarding denial of a FAPE for a minor child. Winkelman, 550 U.S. at 533. Winkelman did not, however, find that parents can allege claims on a minor's behalf pro se. See id. at 535. As such, at question here is whether Ms. Bostedo's complaint plausibly alleges an IDEA FAPE claim by Ms. Bostedo - instead of claims only brought on Jane Doe's behalf. The undersigned finds that it does not, as discussed below.
Here, the plaintiff's complaint only asserts claims on Jane Doe's behalf, not an IDEA FAPE claim by Ms. Bostedo (see doc. 1-1 at 5-15). A FAPE claim under the IDEA requires allegations that Jane Doe was denied meaningful access to the educational process, because a FAPE is one that is reasonably calculated to confer some educational benefit on a disabled child. Bd. of Educ. v. Rowley, 458 U.S. 176, 192, 207 (1982). However, although Ms. Bostedo alleges that Jane Doe has an IEP, the allegations in the complaint relating to the two incidents resulting in Jane Doe's removal from school do not reference the IEP or learning difficulties covered by Jane Doe's IEP (see doc. 1-1 at 5-15). Instead, the allegations surround Ms. Bostedo's dissatisfaction with the response by the School District to complaints by Ms. Bostedo that Jane Doe had been attacked while at school in 2021 and a later incident that took place when Jane Doe accompanied another student to the band room (see id.). Ms. Bostedo alleges that these two incidents caused Jane Doe emotional distress, prevented Jane Doe from completing state testing, and resulted in Jane Doe being unable to return to school (id. at 9-10). However, although Ms. Bostedo alleges that Jane Doe was unable to return to school due to emotional distress, there are no allegations that the incidents were contemplated in the formation of Jane Doe's IEP, involved Jane Doe's disability, or involved Jane Doe's school work. See Rowley, 458 U.S. at 206-07 (noting that the court's inquiry is twofold, evaluating whether the State has complied with the procedures set forth in the IDEA and whether the IEP developed through the IDEA procedure is reasonably calculated to enable the child to receive educational benefits). In light of the foregoing, Ms. Bostedo has failed to allege a FAPE claim under the IDEA. Accordingly, the undersigned recommends that this action be dismissed because Ms. Bostedo has not alleged an IDEA FAPE claim, she cannot represent Jane Doe's claims in this action because she is not an attorney, and no attorney has noticed an appearance on Jane Doe's behalf.
RECOMMENDATION
By order issued October 31, 2022, the undersigned gave Ms. Bostedo an opportunity to find counsel licensed in this court to represent Jane Doe in this action and warned Ms. Bostedo that if no attorney filed a notice of appearance the case would be forwarded to the assigned United States District Judge with a recommendation that it be dismissed (doc. 32). To date, the deadline has passed and no attorney has filed a notice of appearance on Jane Doe's behalf. As such, because Ms. Bostedo may not represent Jane Doe in this action, the undersigned recommends that the district court dismiss this action without prejudice, without further leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 796 (4th Cir. 2022) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). The attention of the parties is directed to the important notice on the following page.
IT IS SO RECOMMENDED.
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
250 East North Street, Room 2300
Greenville, South Carolina 29601
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).