Opinion
Civil Action 4:23-cv-2515-JD-TER
12-12-2023
MARLA FRASIER and PARRIS FRASIER individually and on behalf of minor child (M.F.), 8/17/2012, Plaintiff, v. FLORENCE COUNTY SCHOOL DISTRICT ONE, RICHARD O'MALLEY, BRIAN DENNY, TINA JOHNSON, TERESA HARMON, and GILBERT NANCE, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
Plaintiffs originally filed this action in the Court of Common Pleas, Florence County, South Carolina, alleging state law causes of action for negligent hiring, training, and supervision, negligence per se, gross negligence, intentional infliction of emotional distress, and breach of fiduciary duty, as well as claims under the Title II of the Americans with Disabilities Act of 1990 (ADA) 42 U.S.C. §§ 12131 et al, and Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794. Defendants removed the action to this court asserting jurisdiction pursuant to 28 U.S.C. § 1331. Presently before the court are Plaintiffs' Motion to Remand (ECF No. 5) and Defendants' Motion to Dismiss (ECF No. 6). Because Plaintiffs are proceeding pro se, they were advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendant's motion could result in the motion being granted and their claims dismissed. Plaintiffs timely filed a Response (ECF No. 10). Defendants also filed a Response (ECF No. 9) to Plaintiffs' Motion to Remand. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(e), DSC. This report and recommendation is entered for review by the district judge.
II. MOTION TO REMAND
Removal is proper of “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441. District courts have original jurisdiction of “civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Although Plaintiffs allege mostly state law causes of action in their complaint, they also assert claims under Title II of the ADA and Section 504 of the Rehabilitation Act, both federal statutes. Therefore, those claims arise under the laws of the United States, and jurisdiction is proper in this court. The court has supplemental jurisdiction over the state law claims. 28 U.S.C. § 1367. Accordingly, remand is not appropriate.
III. MOTION TO DISMISS
Defendants seek dismissal of this action because 1) non-attorney parents cannot represent their children in a legal capacity in federal court, 2) Plaintiffs individually lack standing to bring this action based on damages suffered by their child, and 3) Plaintiffs fail to allege facts sufficient to state a claim against these Defendants.
The Fourth Circuit Court of Appeals has held “[t]o 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). “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), affd, 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). Dismissal of the minor child's claims prior to allowing him time to secure legal counsel is not appropriate. Therefore, it is recommended that the motion to dismiss as to the minor child's claims be denied at this time and the child be allowed thirty days to retain counsel.
Plaintiffs Marla Frasier and Parris Frasier also claim to bring this action on behalf of themselves. However, the allegations in the complaint all stem from actions taken with respect to the minor child, and the only damages alleged are those suffered by the minor child. Plaintiff alleges that Defendants owed a duty to M.F. to provide a safe educational environment, yet they breached that duty by failing to intervene and stop repeated, disability-based harassment and bullying, which resulted in M.F. developing severe emotional and psychological issues, including depression and suicidal ideations, embarrassment, humiliation, ostracism, anxiety, grief, emotional distress, physical stress, and other economic and psychological injuries. The complaint further alleges that Defendants violated M.F.'s rights under Title II of the ADA and Section 504 of the Rehabilitation Act. Compl. ¶¶ 21-22, 17, 25, 29, 32, 35, 39-40, 41-42.
“Article III of the Constitution limits the jurisdiction of the federal courts to ‘Cases' and ‘Controversies.' U.S. Const. art. III, § 2. That federal courts' jurisdiction is limited to actual cases or controversies is a ‘bedrock' principle fundamental to our judiciary's role in our system of government. John & Jane Parents 1 v. Montgomery Cnty. Bd. of Educ., 78 F.4th 622, 628 (4th Cir. 2023) (citing Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)). To establish standing, a plaintiff must “show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion LLC v. Ramirez,__U.S.__, 141 S.Ct. 2190, 2203, 210 L.Ed.2d 568 (2021) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). To show injury in fact, “a party must assert his own legal rights and cannot rest his claim to relief on the legal rights ... of third parties.” Sessions v. Morales-Santana, 137 S.Ct. 1678, 1689 (2017) (quotations omitted); Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009). As stated above, the allegations in the complaint address duties owed to M.F. and the violation of rights held by M.F. Further, the damages alleged in the complaint were sustained by M.F., not her parents. Therfore, Plaintiffs Marla Frasier and Parris Frasier lack standing to assert the claims raised in the complaint and dismissal of those claims is appropriate.
This is not to say that Marla Frasier and Parris Frasier cannot bring claims on behalf of M.F., see Morales-Santana, 137 S.Ct. at 1689 (citing Kowalski v. Tesmer, 543 U.S. 125, 130 (2004)) (holding that a party may assert the rights of another where “the party asserting the right has a close relationship with the person who possesses the right [and] there is a hindrance to the possessor's ability to protect his own interests”), though, as discussed above, they must be represented by counsel to do so.
IV. CONCLUSION
For the reasons discussed above, it is recommended that Plaintiffs' Motion to Remand (ECF No. 5) be denied, and Defendants' Motion to Dismiss (ECF No. 6) be granted in part and denied in part. Specifically, it is recommended that the Motion to Dismiss be granted as to all claims asserted by Marla Frasier and Parris Frasier individually, but be denied at this juncture as to the claims asserted on behalf of M.F. to allow Plaintiffs an opportunity to retain counsel. It is further recommended that Plaintiffs be allowed thirty days to retain counsel on behalf of M.F. If Plaintiffs fail to retain counsel on behalf of M.F., it will be recommended that those claims be dismissed as well.