Opinion
C/A No. 7:19-cv-00981-BHH-JDA
05-08-2019
MTJH, a minor by and through his mother and guardian, Tosha Jeter-Hillstock, Plaintiff, v. Spartanburg County District 7, McCarthy Teszler School, Defendant.
REPORT AND RECOMMENDATION
Tosha Jeter-Hillstock ("Plaintiff"), proceeding pro so and in forma pauperis, filed this action, purportedly on behalf of her minor child, under the Individuals with Disabilities Education Act ("IDEA"). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the undersigned Magistrate Judge is authorized to review the Complaint for relief and submit findings and recommendations to the District Court. Having reviewed the Complaint in accordance with applicable law, the undersigned concludes that this action should be summarily dismissed without issuance and service of process.
BACKGROUND
Plaintiff commenced this action by filing a Complaint on April 3, 2019, purportedly under the IDEA, alleging a claim for discrimination on behalf of her minor child. [Doc. 1.] Plaintiff alleges that Defendant discriminated against her minor child on the basis of his disability. [Id. at 3.] Specifically, Plaintiff claims her son was "close[d] in an [i]nappropriate area that was not authorized by [a] parent and not allow[ed] to eat." [Id. at 5.] Plaintiff also alleges that her son "(1) did not have (pec's) to commu[ni]cate (2) close[d] in room against will/without parent consent, (3) not allow[ed] to eat, nor go to the restroom from Aug. 2018-Sept. 2018 school year of 2018-2019." [Id.] Plaintiff alleges that, as a result of Defendant's actions, her son "lost dignity, suffer[ed] from hunger, den[ied] time from social with peers." [Id.] For her relief, Plaintiff seeks $80,000 to $100,000 in damages. [Id.]
While it is unclear what Plaintiff means by this allegation, the Court notes that Plaintiff may be referring to the Picture Exchange Communication System, which is a technique used to teach functional communication for children who have various cognitive, physical, and communication challenges related to an autism spectrum disorder. See https://pecsusa.com/pecs/ (last visited Apr. 30, 2019).
This Court conducted an initial screening of the Complaint pursuant to 28 U.S.C. § 1915 and, on April 11, 2019, issued an Order to Show Cause why the case should not be dismissed. [Doc. 10.] Specifically, the Court directed Plaintiff to explain why the case should not be dismissed for the following reasons: Plaintiff is not permitted to represent her minor child in this action, Plaintiff has not exhausted her administrative remedies under the IDEA, and Plaintiff seeks relief that is unavailable under the IDEA. [Id. at 1.] On April 25, 2019, Plaintiff filed a reply to the Order to Show Cause, but failed to address any of the deficiencies identified in the Order. [Doc. 13.]
APPLICABLE LAW
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint. Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action "fails to state a claim on which relief may be granted," is "frivolous or malicious," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
Further, this Court possesses the inherent authority to review the pro se Complaint to ensure that subject matter jurisdiction exists and that a case is not frivolous, even where the Complaint is not subject to the prescreening provisions of 28 U.S.C. § 1915. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 307-08 (1989) ("Section 1915(d) . . . authorizes courts to dismiss a 'frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision."); Ross v. Baron, 493 F. App'x 405, 406 (4th Cir. 2012) ("[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid . . . [and] because a court lacks subject matter jurisdiction over an obviously frivolous complaint, dismissal prior to service of process is permitted.") (citations omitted); see also Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) ("[D]istrict courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]").
The Court is required to liberally construe the pro se pleadings, and Plaintiff's allegations are assumed to be true. Erickson v. Pardus, 551 U.S. 89, 93 (2007); Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). Even under this less stringent standard, however, the pro se Complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). The Court may not construct Plaintiff's legal arguments for her. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should the Court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
DISCUSSION
Upon review of the Complaint filed in this case and Plaintiff's response to the Court's Order to Show Cause, the undersigned recommends that this case be dismissed because Plaintiff is not permitted to represent her minor child in this action. As noted, Plaintiff is proceeding pro se, and she filed this action under the IDEA purportedly on behalf of her minor child. The United States Court of Appeals for the Fourth Circuit has held that "non-attorney parents generally may not litigate the claims of their minor children in federal court." Myers v. Loudoun Cty. Pub. Schs., 418 F.3d 395, 401 (4th Cir. 2005). And, while the Supreme Court has held that "[p]arents enjoy rights under IDEA; and they are, as a result, entitled to prosecute IDEA claims on their own behalf," Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 531 (2007), courts in the Fourth Circuit have consistently required parents to secure counsel to litigate claims asserted solely 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 F. App'x 406 (4th Cir. 2011); Bernard v. Sch. Bd. of Norfolk, 58 F. Supp. 2d 669, 674 (E.D. Va. 1999) ("[C]ourts have expressly forbidden to allow parents [to] represent the child's interests pro se . . . The courts have concluded that although the IDEA bestows procedural rights upon parents, 'the child, not the parents, is the real party in interest in any IDEA proceeding.'") (citations omitted); see also Catharine W. v. Sch. Bd. of Va. Beach, No. 2:17-cv-645, 2018 WL 4474688, at *5 (E.D. Va. Sept. 4, 2018) (holding plaintiffs could not proceed on behalf of their child without securing counsel because "Winkelman does not authorize non-attorney parents to file claims on behalf of their minor children") (emphasis in original).
Here, Plaintiff is proceeding pro se and has asserted a claim on behalf of her minor child. The Court notified Plaintiff that she is not permitted to represent her child pro se and instructed Plaintiff to explain why she should not be required to secure legal counsel to represent her minor child and to explain what rights, pursuant to the IDEA, she was asserting as a parent on her own behalf. [Doc. 10 at 2.] In response to the Court's Order to Show Cause, Plaintiff replied as follows:
As a[] concern[ed] parent of a[] disable[d] child that can't defend himself[,] I feel it's my duty to be his voice for what has happen[ed] to him and his dignity for being disable[d]. I feel I am the best advocate to represent [my son.][Doc. 13.] Based on Plaintiff's response, it does not appear that Plaintiff is attempting to prosecute any IDEA claim on her own behalf, but is attempting only to represent her minor child in this action.
Accordingly, the undersigned recommends that this action be dismissed because the Court provided Plaintiff with an opportunity to explain why she should not be required to secure legal counsel and warned Plaintiff that failure to do so could subject this case to dismissal. However, Plaintiff has failed to secure legal counsel to represent her minor child or to provide some basis why she should not be required to secure counsel to litigate her son's claims. Because Plaintiff is not permitted to represent her minor child in this action, she is unable to cure the deficiencies identified herein by amendment.
Therefore, this action should be dismissed without affording Plaintiff an opportunity to amend. See Goode v. Central Va. Legal Aid Soc'y, Inc., 807 F.3d 619 (4th Cir. 2015).
The undersigned further notes that, even if Plaintiff had secured counsel to represent her minor child, the Complaint would nevertheless be subject to summary dismissal for two additional reasons. First, it appears that Plaintiff has failed to exhaust her administrative remedies as required by the IDEA. See Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 753 (2017) (the IDEA "compels exhaustion when a plaintiff seeks 'relief' that is 'available' under the IDEA"). "The IDEA provides for federal district court jurisdiction only to review final findings and decisions of administrative proceedings." T.W. v. Hanover Cty. Pub. Sch., 900 F. Supp. 2d 659, 664 (E.D. Va. 2012) (citing 20 U.S.C. § 1415(i)(2)(A); M.E. v. Buncombe Cty. Bd. of Educ., 72 F. App'x 940, 941 (4th Cir. 2003)); see also Wright v. Carroll Cty. Bd. of Educ., No. 11-cv-3103, 2012 WL 1901380, at *5 (D. Md. May 24, 2012) ("[P]laintiffs' failure to exhaust administrative remedies precludes their IDEA claims."); Learning Disabilities Ass'n v. Bd. of Educ. Of Baltimore Cty., 837 F. Supp. 717, 722 (D. Md. 1993) ("'The philosophy of the [IDEA] is that a plaintiff must first exhaust the state administrative remedies provided under the Act, including the administrative appeals provisions, before bringing an action in federal court.'") (citation omitted) (alteration in original). As the Fourth Circuit has explained,
The IDEA . . . provides a panoply of procedural safeguards and administrative remedies based on Congress' belief that courts should not "substitute their own notions of sound educational policy for those of the school authorities which they review." Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1983). Given this Congressional intent, it would be improper to second-guess the school district's decisions before they are made. If this system seems burdensome, the remedy lies in Congress, not the courts.Morgan v. Greenbrier Cty. W. Va. Bd. of Educ., 83 F. App'x 566, 571 (4th Cir. 2003). Thus, because "[t]he IDEA'S exhaustion requirement serves the important purpose of allowing states to use their special expertise to resolve educational disputes," E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773 F.3d 509, 514 (4th Cir. 2014), a plaintiff's failure to exhaust administrative remedies deprives the federal courts of subject matter jurisdiction over an IDEA claim, see M.M. v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 535 (4th Cir. 2002). The Court notified Plaintiff, in its Order to Show Cause, that Plaintiff's claims under the IDEA appeared to be precluded because the allegations in the Complaint indicated that Plaintiff had failed to exhaust her administrative remedies. [Doc. 10 at 3.] The Court directed Plaintiff to provide facts concerning the issue of exhaustion that would militated against dismissal based on the IDEA's exhaustion requirement; to explain what steps, if any, Plaintiff had taken to exhaust her administrativ remedies under the IDEA; and to provide the dates and outcomes of any due process hearings that have been conducted related to the matters alleged in the Complaint. [Id.] Nevertheless, Plaintiff failed to provide any further allegations to demonstrate that she had exhausted her administrative remedies under the IDEA.
Second, Plaintiff seeks relief that is not available under the IDEA. In the Complaint, Plaintiff asserts that she is seeking money damages. However, money damages generally are unavailable for IDEA claims. As the Fourth Circuit has explained, "awards of compensatory and punitive damages [are] inconsistent with IDEA's structure, [and] they present acute problems of measurability." Sellers v. Sch. Bd. of Mannassas, 141 F.3d 524, 528 (4th Cir. 1998); see also Bd. of Educ. of Boone, v. K.M., No. 2:14-cv-10563, 2015 WL 1481775, at *3 n.4 (S.D.W. Va. Mar. 31, 2015) ("[M]oney damages are not available under the IDEA."); Wright, 2012 WL 1901380, at *7 ("The Fourth Circuit has unequivocally held 'that [the] IDEA does not provide for compensatory or punitive damages . . . .'") (quoting Sellers, 141 F.3d at 525). The Court notified Plaintiff, in its Order to Show Cause, that she is not entitled to the relief she demands under the IDEA. [Doc. 10 at 3.] The Court directed Plaintiff to provide facts concerning the relief requested, showing that she is entitled to relief under the IDEA; to explain why she is entitled to money damages in this case; and to provide a description of any and all other relief to which she contends she is entitled. [Id.] Nevertheless, Plaintiff failed to provide any further allegations to support her claim for relief. Accordingly, Plaintiff has failed to identify any relief to which she is entitled under the IDEA.
RECOMMENDATION
Accordingly, it is recommended that the District Court DISMISS this action without issuance and service of process.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge May 8, 2019
Greenville, South Carolina
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
300 East Washington Street, Room 239
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).