United States District Court, D. Nebraska
WARREN D. CROZIER, and PAULA M. CROZIER, Parents of Minor Child A.C., Plaintiffs,
WESTSIDE COMMUNITY SCHOOLS DISTRICT, et al., Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
Warren D. Crozier, and Paula M. Crozier, Parents of Minor
Child A.C., filed this case on September 17, 2018, and have
been granted leave to proceed in forma pauperis. The court
now conducts an initial review of Plaintiffs' Complaint
to determine whether summary dismissal is appropriate under
28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
bring this action on behalf of their minor child, who was
enrolled as a student at Westside Middle School in Omaha,
Nebraska, during the 2016-2017 school year. Plaintiffs claim
Defendants violated their child's First Amendment
right to free speech and denied her the equal protection of
the laws. Pursuant to 42 U.S.C. § 1983, they seek to
recover compensatory and punitive damages, and also request
declaratory and injunctive relief.
STANDARDS ON INITIAL REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e). The court must dismiss
a complaint or any portion of it that states a frivolous or
malicious claim, that fails to state a claim upon which
relief may be granted, or that seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
plaintiffs must set forth enough factual allegations to
“nudge their claims across the line from conceivable
to plausible, ” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 569-70 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“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.”).
essential function of a complaint under the Federal Rules of
Civil Procedure is to give the opposing party ‘fair
notice of the nature and basis or grounds for a claim, and a
general indication of the type of litigation
involved.'” Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting
Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir.
1999)). However, “[a] pro se complaint must be
liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
state a § 1983 cause of action, a plaintiff must allege
a violation of rights protected by the United States
Constitution or created by federal statute and also must show
that the alleged deprivation was caused by conduct of a
person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988).
is a “jurisdictional prerequisite that must be resolved
before reaching the merits of a suit.” Gerlich v.
Leath, 861 F.3d 697, 703 (8th Cir. 2017) (quoting
Hodak v. City of St. Peters, 535 F.3d 899, 903 (8th
Cir. 2008)). Under Article III of the Constitution, a
plaintiff must demonstrate three elements to establish
standing: “(1) injury in fact, (2) a causal connection
between that injury and the challenged conduct, and (3) the
likelihood that a favorable decision by the court will
redress the alleged injury.” Id., at 703-04
(quoting Young Am. Corp. v. Affiliated Computer Servs.
(ACS), Inc., 424 F.3d 840, 843 (8th Cir. 2005)). To
establish an injury in fact, a party must “show that he
personally has suffered some actual or threatened injury as a
result of the putatively illegal conduct of the
defendant.” Id., at 704 (quoting Valley
Forge Christian Coll. v. Ams. United for Separation of Church
& State, Inc., 454 U.S. 464, 472 (1982)). An injury
is defined under 42 U.S.C. § 1983 as a
“deprivation of any rights, privileges, or immunities
secured by the Constitution and laws.” Id.
allege they have incurred expenses and lost income as a
result of their daughter suffering from depression and
anxiety related to the alleged violations of her
constitutional rights, and have suffered their own emotional
distress (Filing 1, pp. 27-28), but these are not
constitutional injuries. That is to say, Plaintiffs do not
allege that they have been deprived of any constitutional
rights; they only claim to have suffered incidental injuries
as a result of alleged violations of their daughter's
rights. It is well-established that “parents lack
standing to bring individual claims under § 1983 based
solely upon deprivation of a child's constitutional
rights.” Rucker on behalf of Rucker v. Smith,
No. 8:17CV364, 2018 WL 400761, at *2 (D. Neb. Jan. 12, 2018)
(quoting Phillips ex rel. Green v. City of New York,
453 F.Supp.2d 690, 734 (S.D.N.Y. 2006)); see Irwin v. W.
Irondequoit Cent. Sch. Dist., No. 6:16-CV-06028 EAW,
2017 WL 881850, at *3 (W.D.N.Y. Mar. 2, 2017) (citing cases);
Ellinghaus v. Educ. Testing Serv., No. 15-CV-3442
(SJF) (AKT), 2016 WL 8711439, at *4 (E.D.N.Y. Sept. 30, 2016)
(“While a parent may sue on behalf of her minor child,
she may not assert claims in her individual capacity where
her complaint suggests that only her child's rights were
violated.”); Nguyen v. Milliken, No.
15-CV-0587 (MKB), 2016 WL 2962204, at *7 (E.D.N.Y. May 20,
2016) (“A parent ‘lacks standing to bring
individual claims under § 1983 based upon a deprivation
of [a child's] constitutional rights' because
‘only the person toward whom the state action was
directed, and not those incidentally affected may maintain a
§ 1983 claim.'”) (quoting Morgan v. City
of New York, 166 F.Supp.2d 817, 819 (S.D.N.Y. 2001));
see also Horton v. Bd. of Educ. of the
Sherburne-Earlville Cent. Sch. Dist., No. 5:15-CV-00782,
2016 WL 2354266, at *2 (N.D.N.Y. May 4, 2016) (“To the
extent that a parent asserts a § 1983 claim alleging
emotional distress arising from their child's alleged
constitutional deprivation, such claims similarly fail
‘[b]ecause emotional distress does not constitute a
violation of a federally protected constitutional right
....'”) (quoting Morgan, 166 F.Supp.2d at
819); Burrow By & Through Burrow v. Postville Cmty.
Sch. Dist., 929 F.Supp. 1193, 1208 (N.D. Iowa 1996)
(holding that parents lack standing to bring individual
claims under § 1983 based upon a deprivation of their
child's constitutional rights, and that suffering
emotional distress does not constitute a violation of a
federally guaranteed right). Thus, the court does not have
jurisdiction over Plaintiffs' individual claims.
Plaintiffs may be entitled to bring suit in a representative
capacity to redress the alleged violations of their
daughter's constitutional rights, see Fed. R.
Civ. P. 17(c)(1)(A) (authorizing a general guardian to sue on
behalf of a minor),  they cannot do so by appearing pro se.
“[I]t is well established that a pro se party may not
represent others, even when it is a parent purporting to
represent his minor children.” Behrens v. GMAC
Mortg., LLC, No. 8:13-CV-72, 2013 WL 6118415, at *4 (D.
Neb. Nov. 21, 2013) (citing cases), aff'd 566
Fed.Appx. 546 (8th Cir. 2014). “While there are some
situations in which parents may bring pro se claims on behalf
of their children-such as an application for Social Security
benefits-no comparable exception has ever been recognized for
a lawsuit based on § 1983 or general state tort
law.” Stephenson v. Bruno, No. 4:14CV3097,
2014 WL 5850837, at *4 (D. Neb. Nov. 12, 2014) (quoting
Nunley v. Erdmann, No. C14-4016-MWB, 2014 WL
5020253, at *4 (N.D.Iowa Oct. 8, 2014) (internal quotation
marks and citation omitted)). As further explained in
McNeil v. City of Omaha, No. 8:07CV143, 2008 WL
312715, at *3 (D. Neb. Jan. 30, 2008) (quoting Wolfe v.
Johanns, No. 8:00CV609, 2002 WL 475172, at *1-2 (D.Neb.
Mar. 29, 2002)):
[R]epresentative parties may not appear pro se on behalf of
other litigants. In particular, a non-attorney parent may not
appear pro se on behalf of a minor child. Cheung v. Youth
Orchestra Found. of Buffalo, Inc., 906 F.2d 59 (2d
Cir.1990). Accord Devine v. Indian River County School
Bd., 121 F.3d 576 (11th Cir.1997), [overruled on
other grounds by Winkelman v. Parma City Sch. Dist., 550
U.S. 516 (2007)]. Johns v. County of San Diego, 114
F.3d 874 (9th Cir.1997); OseiAfriyie v. Medical College
of Pa., 937 F.2d 876 (3d Cir.1991). [ ] Courts have a
duty to enforce this rule sua sponte, as it is designed to
protect the legal interests of children. [ ] Wenger v.
Canastota Cent. School Dist., 146 F.3d 123, 125 (2d
Cir.1998), [overruled on other grounds byWinkel ...