Opinion
CIVIL ACTION NO. 3:02-CV-1853-P
June 25, 2003
ORDER
Now before the Court is Defendants' Pre-Answer Motion to Dismiss, filed February 17, 2003, with Plaintiff's First, Second and Third Rebuttal Responses to Defendants' Pre-Answer Motion to Dismiss, as well as Defendants' Reply. After full consideration of the Parties' briefing and the applicable law, for the reasons discussed herein, the Court hereby GRANTS Defendants' Pre-Answer Motion to Dismiss.
BACKGROUND
On August 28, 2002, Plaintiff's Alinda Francine Carter-Thomas ("Thomas") and her minor child, Jane Doe ("Doe") (collectively "Plaintiff's") filed a Complaint against Dallas Independent School District ("DISD"), Dallas Independent School District Superintendent, Dr. Mike Moses ("Moses"), Dallas Independent School District Board ("Board"), Philip Jackson, and Kyle Richardson (collectively "Defendants").
Plaintiff's filed this lawsuit, appealing and seeking review of special education due process hearing officer Janis Herd's ("Herd") decision, issued on July 8, 2002. Plaintiff filed for a due process hearing, claiming that DISD violated the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (2003)("IDEA"), regarding the education of Thomas' daughter, Doe. The issues involved in the due process hearing related to: 1) whether DISD provided an appropriate education to Doe, 2) whether Plaintiff's were entitled to compensatory services in the form of District-provided tuition and transportation to a private school or private tutoring service; and 3) whether a change in placement, proposed by the DISD Admission Review and Dismissal Committee ("ARDC") in March of 2002, was appropriate. In her decision, Herd stated that 1) Doe made progress and received educational benefit in DISD, 2) Plaintiff's were not entitled to compensatory services, and 3) that Doe's disabilities required more intensive special education services than that provided by the program proposed in March 2002 by ARDC. It is from this decision that Plaintiff's appealed, filing a complaint with this Court. On February 17, 2003, Defendants filed this Pre-Answer Motion to Dismiss.
DISCUSSION
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint when Defendant shows that Plaintiff has failed to state a claim for which relief may be granted. A motion to dismiss for failure to state a claim is viewed with disfavor and should rarely be granted. See Kaiser Aluminum Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). Under the rule of Conley v. Gibson, 355 U.S. 41 (1957), a claim should not be dismissed unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46. The Court must render its decision taking the complaint in the light most favorable to the Plaintiff and taking its allegations as true. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The Court limits its inquiry to whether Plaintiff is entitled to offer evidence to support claims and does not address whether Plaintiff will ultimately prevail on the merits. Johnson v. Dallas Ind. School Dist., 38 F.3d 198, 199 (5th Cir. 1994). However, dismissal is proper when "even the most sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).
Defendants claim that because Plaintiff's lack the capacity to bring and maintain this action individually and because Thomas cannot bring this action as "next friend" without the aid of counsel, Plaintiff's cannot prove any set of facts that would allow relief under the allegations in the complaint.
I. Individual Capacity
Plaintiffs bring this action pursuant to the provisions of the IDEA which affords any party aggrieved by the findings and decision made by a due process hearing officer "the right to bring a civil action with respect to the complaint." 20 U.S.C. § 1400 (i)(2)(A) (2003). This complaint is brought by both Thomas and Doe, each in their individual capacities.
Doe
Federal Rule of Civil Procedure 17 states that the "capacity to sue or be sued shall be determined by the law of the state in which the district is held." The Court accordingly looks to Texas law to determine if Doe has the capacity to sue. According to the Texas Supreme Court, a minor cannot bring a cause of action on her own behalf unless her disability of minority has been removed. Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983). Furthermore, a minor does not have the legal capacity to employ an attorney or anyone else to watch over her interests. Byrd v. Woodruff, 891 S.W.2d 689, 704 (Tex.App.-Dallas 1994, writ denied). Doe is 13 years old, and a minor. Thus, Doe, in her individual capacity, cannot allege any cognizable theory of recovery and cannot state a claim upon which relief may be granted. Therefore, the Court GRANTS Defendants' Motion to Dismiss as to Doe.
Thomas
The IDEA does not provide for a separate and independent cause of action for the parents of students. The Court stated in Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 227 (3rd Cir. 1998)
. . . the IDEA does not confer joint substantive rights on parents and their children. We agree that the IDEA grants parents ample procedural rights to ensure active parental involvement at all stages of the development and implementation of a child's individual educational program, even through the administrative process. We think, however, that Congress's decision to endow parents with these procedural rights should not be read, under the language of the IDEA, to imply that parents also possess the same underlying substantive rights that their children possess.See also Bernard v. School Bd., 58 F. Supp.2d 669, 674 (E.D. Va. 1999) (holding that although the IDEA bestows procedural rights upon parents, the child, not the parents, is the real party in interest in any IDEA proceeding).
Thus, a parent does not have a right of action under the IDEA, other than in a next friend capacity, for her disabled child. The Court cannot clearly discern from the Complaint if Plaintiff is suing only in her individual capacity, or if Plaintiff is also suing in next friend capacity. Construing the pleadings liberally, the Court interprets the Complaint to mean that Plaintiff is suing in her individual capacity as well as in a next friend capacity. Because Plaintiff has stated no claim upon which relief can be granted, the Court GRANTS Defendants' Motion to Dismiss with prejudice as to Thomas in her individual capacity, and GRANTS Defendant's Motion to Dismiss without prejudice as to Thomas in her capacity as next friend to her minor child. As discussed below, the Court will allow Thomas 30 days to retain an attorney and refile as next friend of her minor child.
Fed.R.Civ.P. 17(c) states, "An infant or incompetent person . . . may sue by a next friend."
II. Parent Pro-Se Representation
In light of the Court's ruling that Thomas has 30 days to retain an attorney and refile as next friend, the Court next turns to the issue of Thomas representing her child without the aid of counsel. It has long been recognized that a litigant in federal court has the right to proceed as his or her own counsel. 28 U.S.C. § 1654 (2003) (stating "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel. . . ."). In contrast, under Rule 17 of the Federal Rules of Civil Procedure, minors are precluded from determining their own legal actions. Rather, under Rule 17(c), a representative or guardian "may sue or defend on behalf of the infant."
While the Fifth Circuit has not addressed directly the issue of whether a parent can represent her child in a pro se capacity in a federal proceeding under the IDEA, the Fifth Circuit has held that individuals who do not have a law licence may not represent other parties in federal court even on a next friend basis. Weber v. Garza, 570 F.2d 511, 514 (5th Cir. 1978) (finding that "individuals not licensed to practice law by the state may not use the `next friend' device as an artifice for the unauthorized practice of law"); see also Guajardo v. Luna, 432 F.2d 1324 (5th Cir 1970)(holding, upon being faced with Petitioner's request for declaratory judgment that a state may not constitutionally prevent a layman from filing a civil suit on behalf of another person, that "the requirement that only licensed lawyers may represent others in court is a reasonable rule that does not offend any constitutional guarantee")
Several other circuits have also held that the right to proceed pro se in federal courts does not give non-lawyer parents the right to represent their children in proceedings before a federal court. See Cheung v. Youth Orchestra Found., 906 F.2d 59, 61 (2d Cir. 1990); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986); Johns v. County of San Diego, 114 F.3d 874, 876-77 (9th Cir. 1997); Hickey v. Wellesley Sch. Comm., 14 F.3d 44, 1993 WL 527964, at *2 (1st Cir. Dec. 21, 1993) (unpublished disposition).
The Third Circuit addressed this issue at length in Collinsgru, deciding whether the parents seeking to enforce their child's substantive right to an appropriate education under the IDEA may or may not represent their child in federal court. Collinsgru, 161 F.3d at 227. The Court concluded that in light of the IDEA'S language and the statutory and common law rules guarding against non-attorney representation, the parent could not. Id.
Furthermore, the Second Circuit stated,
It goes without saying that it is not in the interests 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. There is nothing in the guardian-minor relationship that suggests that the minor's interests would be furthered by representation by the non-attorney guardian.Cheung v. Youth Orchestra Foundation, Inc., 906 F.2d 59, 61 (2nd Cir. 1990).
The Court agrees with the Second and Third Circuits in finding that a non-attorney parent shall not represent their minor child in federal court. Accordingly, because Thomas cannot represent her child without the aid of an attorney, the Court GRANTS Defendants' Motion to Dismiss as to Thomas' next friend claim, without prejudice. Thomas will be given 30 days to retain an attorney to refile her next friend claim.
CONCLUSION
After full consideration of the Parties' briefing and the applicable law, for the reasons discussed herein, the Court hereby GRANTS Defendants' Pre-Answer Motion to Dismiss with prejudice as to Plaintiff Doe, and with prejudice as to Plaintiff Thomas in her individual capacity and without prejudice as to Thomas in her next friend capacity. Thus, within 30 days Plaintiff may refile as next friend but only through the services of a licenced and admitted attorney to represent her daughter's interests in court.