UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------X ELLEN REYES, as parent and natural guardian of Joy Reyes,
Plaintiff, MEMORANDUM & ORDER -against- 14-CV-0661(JS)(GRB)
BOARD OF EDUCATION OF THE BELLMORE & MERRICK SCHOOL DISTRICT,
Defendant. ----------------------------------X For Plaintiff: Ellen Reyes, pro se P.O. Box 550 Merrick, NY 11566
For Defendant: No appearance
SEYBERT, District Judge:
Pro se plaintiff Ellen Reyes (“Plaintiff”), as parent and
natural guardian of her daughter, Joy Reyes (“Reyes”), filed a
Complaint in this Court pursuant to the Individuals with
Disabilities Education Act, 20 U.S.C. § 1400 et. seq., (“IDEA”)
against the Board of Education of the Bellmore and Merrick School
District (“Defendant”) alleging that the Defendant failed to
provide Reyes a “Free Appropriate Public Education (“FAPE”) in a
safe environment” in violation of federal law. Plaintiff further
claims that the Defendant violated Reyes’s unspecified
constitutional rights and “United States Disabilities Act Laws.”
(Compl. at 1.)
Accompanying the Complaint is an application to proceed
in forma pauperis. Upon review of Plaintiff’s declaration in
support of her application to proceed in forma pauperis, the Court
finds that Plaintiff’s financial status qualifies her to commence
this action without prepayment of the Court’s filing fee. See 28
U.S.C. § 1915(a)(1). Accordingly, the application to proceed in
forma pauperis is GRANTED. However, for the reasons that follow,
the Complaint is sua sponte DISMISSED WITHOUT PREJUDICE for failure
to allege a plausible claim pursuant to 28 U.S.C. § 1915(e)(2)
(B)(ii).
BACKGROUND1
Plaintiff’s brief Complaint alleges the following in its
entirety:2
Ellen Reyes as parent and nature guardian (hereinafter “Parent” or “Mother”) of Joy Reyes (hereinafter “Joy or Student”) date of birth 1/17/994, Joy Reyes was illegally kicked out from John F. Kennedy High School (February 1, 2012, and February 2, 2012), bullied, mental abuse, physical abuse, harassed, denied lunch and bathroom visits, in 9th, 10th and 11th grades by Bellmore & Merrick School District. Bellmore & Merrick School District failure to provide Joy Reyes a Free Appropriate Public Education in a safe environment (the Federal statute provides that a ‘Free Appropriate Public Education’ include special education (20 USC section 1401(a) (18)). Bellmore & Merrick School District violated Joy Reyes Student’s Constitutional rights. Bellmore and Merrick School District are in violations of the United States
1 All allegations in Plaintiff’s Complaint are assumed to be true for purposes of this Memorandum and Order. 2 The “Statement of Claim” is reproduced here exactly as it appears in the Complaint. Errors in spelling, grammar, and punctuation have not been changed or noted.
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Disabilities Act Laws. Joy Reyes by Parent and Natural Guardian, Ellen Reyes is prosecuting relief for mental and physical damages.
(Compl. at 1.) Annexed to the single page Complaint are an
additional 126 pages largely comprised of multiple copies of
portions of letters from Plaintiff to the New York State Department
of Education, the Bellmore Merrick School District, and Frederick
Brewington, Esq., as well as copies of Reyes’s report cards, and
prescriptions for physical and occupational therapy for Reyes.
(See Compl., exhibits 1-6 annexed thereto.) Although Reyes is
alleged to be twenty (20) years old, the Complaint and in forma
pauperis application are signed only by Plaintiff.
DISCUSSION
I. In Forma Pauperis Applications
Upon review of Plaintiff’s declaration in support of her
application to proceed in forma pauperis, the Court finds that
Plaintiff’s financial status qualifies her to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1).
Therefore, Plaintiff’s request to proceed in forma pauperis is
GRANTED.3
3 Notwithstanding the fact that Plaintiff filed an application to proceed in forma pauperis, Plaintiff also requested that the Clerk of the Court issue a Summons while her application was sub judice. However, the application to proceed in forma pauperis obviates the need for a Summons before the application is decided since the in forma pauperis statute expressly provides that “[t]he officers of the court shall issue and serve all process, and perform all duties in such cases.” 28 U.S.C. § 1915(d).
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II. Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to
dismiss an in forma pauperis complaint if the action is frivolous
or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is immune
from such relief. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii).
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally, see Sealed Pl. v. Sealed Def., 537 F.3d 185,
191 (2d Cir. 2008), and to interpret pro se papers “‘to raise the
strongest arguments that they suggest.’” Corcoran v. N.Y. Power
Auth., 202 F.3d 530, 536 (2d Cir. 1999) (quoting McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (additional citation
omitted)). Moreover, at the pleadings stage of a proceeding, the
Court must assume the truth of “all well-pleaded, nonconclusory
factual allegations” in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868
(2009)), aff’d, --- U.S. ----, 133 S. Ct. 1659, 185 L. Ed. 2d 671
(2013). However, a complaint must plead sufficient facts to “state
a claim to relief that is plausible on its face.” Bell Atl. Corp.
Accordingly, the Summons was prematurely issued. Given that the issuance of the Summons at that time was improper, insofar as Plaintiff now seeks a Certificate of Default [Docket Entry No. 7] such application is DENIED. Should Plaintiff file an Amended Complaint in accordance with this Order, the Court will then direct the Clerk of the Court to issue a Summons to the Defendant and Order service of the Amended Complaint at that time.
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v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. The plausibility standard requires “more
than a sheer possibility that a defendant has acted unlawfully.”
Id.; accord Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d
Cir. 2011). While “detailed factual allegations” are not required,
“[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
A. Standing
“In the federal courts, ‘parties may plead and conduct
their own cases personally or by counsel.’” Berrios v. N.Y. City
Hous. Auth., 564 F.3d 130, 132 (2d Cir. 2009) (quoting 28 U.S.C. §
1654). “[A]n individual generally has the right to proceed pro se
with respect to his own claims or claims against him personally,
[but] the statute does not permit unlicensed laymen to represent
anyone else other than themselves.” Id. (internal quotation marks
and citations omitted). Generally, a non-attorney parent cannot
maintain an action pro se in federal court on behalf of his or her
child. Armatas v. Maroulleti, 484 F. App’x 576, 577 (2d Cir. 2012)
(citing Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 286 (2d
Cir. 2005)); see also Wenger v. Canastota Cent. Sch. Dist., 146
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F.3d 123, 124 (2d Cir. 1998) (holding that a non-attorney parent
must be represented by counsel in bringing an action on behalf of
his or her child) (internal quotation marks and citation omitted),
overruled on other grounds by Winkelman v. Parma City Sch. Dist.,
550 U.S. 516, 127 S. Ct. 1994, 167 L. Ed. 2d 904 (2007).
However, in Winkelman, the Supreme Court held that
parents have standing “to prosecute IDEA claims on their own
behalf” in federal court based upon both procedural violations of
the Act and the substantive denial of a FAPE to their children.
Id. at 535. Therefore, a parent, such as Plaintiff, does have
standing to bring IDEA claims on her own behalf. Moreover, insofar
as Plaintiff seeks to allege discrimination claims under the
Rehabilitation Act of 1973, § 504, 29 U.S.C. § 701 et seq., and/or
the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et
seq., she may do so in her own right since “a parent of a child
with a disability has a particular and personal interest” in
preventing discrimination against that child. Id. at 529; see also
Kampmeier v. Nyquist, 553 F.2d 296, 299 (2d Cir. 1977) (holding
that disabled students, along with their parents, had standing to
bring suit against school officials under the Rehabilitation Act.).
That the parent may bring such claims on her own behalf,
however, does not alter the longstanding rule that “a non-attorney
parent must be represented by counsel in bringing an action on
behalf of his or her child.” Cheung v. Youth Orchestra Found. of
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Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990). Accordingly, the
pro se Plaintiff cannot represent her daughter in this case.
Given Plaintiff’s scant Complaint, it is not at all clear
whether she seeks relief on behalf of her daughter rather than
exclusively in her own right as the parent of child allegedly
entitled to a FAPE under the IDEA. If Plaintiff intends to
prosecute claims on behalf of her daughter, Plaintiff is directed,
within thirty (30) days from the date that this Order is served
upon her, to obtain counsel to represent her daughter in this
matter. Alternatively, given that Reyes is alleged to be twenty
years old, she too may prosecute her claims against the Defendants
in her own right. To do so, she must sign and file an Amended
Complaint as set forth below and file a separate in forma pauperis
application for the Court’s consideration. Reyes’s failure to do
so within the time allowed will lead to the dismissal of her claims
without prejudice.
B. Sufficiency of the Complaint
When reviewing a complaint under section 1915(e), a
district court looks to the requirements of Rule 8 of the Federal
Rules of Civil Procedure. Specifically, Rule 8 provides that a
pleading must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). The purpose of Rule 8 “is to give fair notice of the
claim being asserted so as to permit the adverse party the
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opportunity to file a responsive answer, prepare an adequate
defense and determine whether the doctrine of res judicata is
applicable.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16
(N.D.N.Y. 1995) (internal quotation marks and citation omitted).
While Rule 8(a) of the Federal Rules of Civil Procedure “does not
require detailed factual allegations, . . . it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal,
556 U.S. at 678 (internal quotation marks and citations omitted).
As noted above, a complaint must plead “enough facts to
state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570; see also Iqbal, 556 U.S. at 678 (holding that Rule
8 calls for “sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face’”). Although the
Court should construe the factual allegations in a light most
favorable to the pro se Plaintiff, “the tenet that a court must
accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555). Indeed, “[a] pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” Id. (quoting Twombly,
550 U.S. at 555). Thus, “where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
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misconduct, the complaint has alleged--but it has not ‘show[n]’--
‘that the pleader is entitled to relief.’” Id. at 679 (quoting
Fed. R. Civ. P. 8(a)(2)).
As is readily apparent, the Complaint here wholly fails
to comply with Rule 8’s requirements. The conclusory claims that
Defendant failed to provide Reyes with a FAPE and that it violated
her unspecified constitutional rights and “United States
Disabilities Act Law” (Compl. at 1) do not suffice to put the
Defendant on notice of the claims being asserted so as to permit it
to file a responsive answer and prepare an adequate defense. Astra
Media Grp., LLC v. Clear Channel Taxi Media, LLC, 414 F. App’x 334,
335 (2d Cir. 2011) (“[C]onclusory statements must be disregarded,”
and “the remaining factual assertions must, when read together,
make a plausible case for relief.” (citing Iqbal, 556 U.S. at 678).
Consequently, Plaintiff’s “unadorned” legal conclusions fail to
state a legally cognizable claim.
IV. Leave to Amend
Given the Second Circuit’s guidance that a “district
court should not dismiss 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,” Thompson v. Carter, 284 F.3d
411, 416 (2d Cir. 2002) (internal quotation marks and citation
omitted), the Court has carefully considered whether leave to amend
is warranted here. Upon such consideration, the Court affords
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Plaintiff and Reyes and opportunity to cure the deficiencies noted
above. Plaintiff is GRANTED LEAVE TO AMEND the Complaint and is
warned that her claims will be dismissed with prejudice unless she
files an Amended Complaint by April 23, 2014.
Plaintiff is cautioned that any Amended Complaint filed
completely replaces the original Complaint so all factual
allegations, exhibits, and claims for which relief is sought should
be included in the Amended Complaint. Shields v. Citytrust
Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well
established that an amended complaint ordinarily supersedes the
original, and renders it of no legal effect.”) (internal quotation
marks and citations omitted). The Amended Complaint shall clearly
be labeled “Amended Complaint” and shall bear the same docket
number as the Complaint, 14-CV-0661(JS)(GRB). The Amended
Complaint must clearly set forth the facts that give rise to the
claims, including the relevant dates and places of the alleged
underlying acts as well as each individual who committed each
alleged wrongful act. The Amended Complaint shall be screened
pursuant to 28 U.S.C. § 1915(e)(2). No Summons shall issue at this
time.
CONCLUSION
For the reasons set forth above, the application to
proceed in forma pauperis is GRANTED. However, because Plaintiff
fails to allege a plausible claim against the Defendant, the
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Complaint is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and WITH LEAVE TO FILE AN AMENDED COMPLAINT. Any
Amended Complaint shall clearly be labeled “Amended Complaint” and
shall bear the same docket number as the Complaint, 14-CV-
0661(JS)(GRB). The Amended Complaint must be filed by April 23,
2014 and set forth the facts that give rise to the claims,
including the relevant dates and places of the alleged underlying
acts as well as each individual who committed each alleged wrongful
act. Failure to file an Amended Complaint within the time allowed
will result in the dismissal of Plaintiff’s claims with prejudice.
No Summons shall issue at this time. Additionally, as Plaintiff
has also requested a Certificate of Default that request is DENIED
as premature.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose of
any appeal. See Coppedge v. United States, 369 U.S. 438, 444–45,
82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of the
Memorandum and Order to the pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: March 24 , 2014 Central Islip, NY
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