Opinion
21-CV-6347 (LTS)
08-23-2021
MARKISHA P. WHITE; A.C., a minor, [1] Plaintiffs, v. PINE BUSH CENTRAL SCHOOL DISTRICT; JESSICA ZUKOR; PATRICIA FERNANDEZ; BRIAN BREHENY, Defendants.
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District Judge.
Plaintiff Markisha White, who is appearing pro se, brings this action individually and on behalf of her minor child A.C. She invokes the Court's federal question jurisdiction, alleging tha Defendants failed to protect A.C. from being injured by another student and failed to adequately investigate the incident. By order dated August 4, 2021, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”). For the reasons set forth below, the Court dismisses the complaint, but grants Plaintiff thirty days' leave to replead any claims brought on her own behalf.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The Supreme Court has held that, under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action, ” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff brings this action against the Pine Bush Central School District; A.C.'s one-on-one aide, Jessica Zukor; nurse Patricia Fernandez, and Principal Brian Breheny. The following allegations are taken from the complaint. On May 18, 2021, A.C. came home from school with “a chunk of her hair missing” after a cornrow braid “was ripped from her scalp during recess.” (ECF 2, at 5.) Zukor was away from A.C., talking with other teachers, when the incident occurred. (Id.) A.C. claims that when she got off the swing, she felt a pain in her head. Another child came to A.C. with her braid in his hand while laughing and telling A.C. that her “hair came out.” (Id.) Zukor walked A.C. to Ms. Rose, an assistant nurse, who told A.C. that “she will be fine and sent her to lunch.” (Id.) A.C. was still in pain and alleges that her classmates were teasing and laughing at her and saying, “I got her.” (Id. at 5-6.)
A.C. went to the nurse, Ms. Fernandez, who gave A.C. an ice pack and had her sit down. A.C. requested to call her mother, but Fernandez told A.C. she could not because her mother was working.
Plaintiff alleges that no incident report was made, and she was not informed of the incident by school officials. Plaintiff states that she spoke with Principal Breheny, who “basically ignored” her concerns, and nobody else could answer her questions about what happened. (Id. at 6.)
A.C.'s health care provider stated that it took a lot of force for A.C.'s hair to be pulled out, and that it was unlikely that a swing caused the injury. An investigator from the state police reviewed the video of the incident, and stated, “from what he seen it wasn't from the swing, ” and that the video showed A.C. “going out of camera view with [two] other kids.” (Id. at 7.)
Plaintiff requested a new one-to-one aide for A.C., but the school told her it “didn't have anyone else.” (Id.)
Plaintiff alleges that A.C. suffered “head trauma” from her hair being ripped from her scalp, as well as increased anxiety and emotional distress. (Id. at 6, 7.)
In the section of the complaint form asking Plaintiff to state the relief she seeks, Plaintiff writes, “Personal injury, mental & emotional injury, damages under Americans with disability Act, damages for negligence, Attorney fees, costs, expenses, any further relief as court may deem equitable.” (Id. at 6.)
Plaintiff attaches to the complaint a timeline of the events, email correspondence with school officials, and a copy of a “Section 504 Accommodation Plan” which states that A.C. has been diagnosed with epilepsy and concludes that A.C. “requires 1:1 adult supervision throughout the school day.” (Id. at 10.)
DISCUSSION
A. Federal Rule of Civil Procedure 5.2(a)(3)
Rule 5.2(a)(3) of the Federal Rules of Civil Procedure requires that any court submissions referring to a minor must only include the minor's initials. Plaintiff provides the full name of her minor daughter A.C. in the complaint. The Court is therefore limiting electronic access to the complaint to a “case-participant only” basis. If Plaintiff files any additional documents, she must comply with Rule 5.2(a)(3).
B. Claims on behalf of A.C.
The provision governing appearances in federal court, 28 U.S.C. § 1654, allows two types of representation: “that by an attorney admitted to the practice of law by a governmental regulatory body, and that by a person representing [her]self.” Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991). Generally, a non-attorney parent cannot bring an action without counsel in federal court on behalf of a child. See Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005). “[B]ecause pro se means to appear for one's self, a person may not appear on another person's behalf in the other's cause. A person must be litigating an interest personal to [her].” Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998); Cheung v. Youth Orch. Found. of Buffalo, Inc., 902 F.2d 59, 60 (2d Cir. 1990) (“[I]t is not in the interests of minors . . . that they be represented by non-attorneys.”). Because Plaintiff cannot represent her daughter without counsel, any claims she is asserting on behalf of A.C. are dismissed without prejudice to any action an attorney may file representing A.C.'s interests. This action proceeds with Markisha White as the sole Plaintiff.
Plaintiff may contact the New York Legal Assistance Group (NYLAG) for assistance in retaining counsel on behalf of her daughter. An informational flyer provided by NYLAG is attached to this order.
C. Claims on behalf of Markisha White
The complaint purports to bring claims under the Americans with Disabilities Act of 1990 (“ADA”) and “Section 504, ” which the Court understands to be Section 504 of the Rehabilitation Act of 1973. The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Similarly, Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 29 U.S.C. § 794(a).
Here, the complaint fails to allege facts suggesting that Plaintiff Markisha White is a qualified individual with a disability or that Defendants have violated her rights under these statutes. The Court therefore dismisses the complaint for failure to state claim. 28 U.S.C. § 1915(e)(2)(B)(ii). Because it is unclear whether Plaintiff Markisha White can allege facts to suggest a plausible claim, the Court grants her thirty days' leave to replead any claims she seeks to bring on her own behalf.
D. Leave to Replead
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because it is unclear whether Plaintiff may be able to allege additional facts to state a valid claim on her own behalf, the Court grants Plaintiff thirty days' leave to amend her complaint to detail her claims.
Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated her federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
The Court dismisses the complaint for failure to state a claim on which relief any be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). Any claims asserted on behalf of A.C. are dismissed without prejudice to any action an attorney may file representing A.C.'s interests. The Court grants Plaintiff thirty days' leave to replead her claims in an amended complaint that complies with the standards set forth above. The Clerk of Court is instructed to hold this matter open on the docket until a civil judgment is entered.
The Clerk of Court is directed to transmit a copy of this order to Plaintiff. Plaintiff has consented to receive electronic service of notices and documents in this action. (ECF 3.)
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.