O'Connor v. Bassoff et al.

Filing 13

ORDER denying 11 Amended Emergency Motion for Declaratory Judgment and Injunctive Relief by Judge Lewis T. Babcock on 10/19/15.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02121-GPG
ANDREW J. O’CONNOR, as next friend on behalf of
TEAGAN E. O’CONNOR, a minor,
Plaintiff,
v.
TOBEY BASSOFF,
JOLENE RADOSTIS,
RICK KELLOGG,
ROBBYN FERNANDEZ,
BRUCE MESSINGER,
RYAN ELEMENTARY SCHOOL, and
BOULDER VALLEY SCHOOL DISTRICT NO. RE2, individually and severally,
Defendants.

ORDER DENYING AMENDED EMERGENCY MOTION FOR DECLARATORY
JUDGMENT AND INJUNCTIVE RELIEF

Andrew J. O’Connor, as next friend on behalf of Teagan E. O’Connor, a minor,
initiated this action on September 25, 2015. On September 28, 2015, the Court ordered
Plaintiff to cure certain designated deficiencies in his Complaint and Application to
Proceed in District Court Without Prepaying Fees or Costs. (ECF No. 4). On October 5,
2014, Plaintiff filed an Amended Complaint (ECF No. 8) and an Application to Proceed
in District Court Without Prepaying Fees or Costs (ECF No. 9). However, on October 8,
2015, the Court issued a Second Order Directing Plaintiff to Cure Deficiencies and an
Order Denying Plaintiff’s Emergency Motion for Declaratory Judgment and Injunctive
Relief. (ECF No. 10). In the October 8, 2015 Order, the Court stated:

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It has come to the Court’s attention that Plaintiff lacks standing to
represent his minor child in this action. See Meeker v. Kercher, 782 F.2d
153, 154 (10th Cir. 1986) (per curiam). Under Fed. R. Civ. P. 17(c) and
28 U.S.C. § 1654, a minor child “cannot bring suit through a parent acting
as next friend if the parent is not represented by an attorney.” Id.; accord
Osei-Afriyie ex rel. Osei-Afriyie v. Medical College of Pa., 937 F.2d 876,
882-83 (3d Cir. 1991); Cheung v. Youth Orchestra Found. of Buffalo, Inc.,
906 F.2d 59, 61 (2d Cir. 1990). The general rule prohibiting non-attorney
parents from representing their minor child in federal court is designed to
protect the interests of the minor party and guard the judiciary’s authority
to govern those who practice in its courtrooms. Adams ex re. D.J.W. v.
Astrue, 659 F.3d 1297, 1300 (10th Cir. 2011); cf. Winkelman ex rel.
Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 535 (2007) (holding
that parents are entitled to prosecute IDEA claims on their own behalf, but
explicitly not reaching issue of whether IDEA “entitles [non-attorney]
parents to litigate their child’s claims pro se.”); Miller ex rel. S.M. v. Board
of Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1244 (10th Cir. 2009).
Mr. O’Connor is not represented by an attorney. Therefore, Mr. O’Connor
may not represent his minor child in this action.
(ECF No. 10 at 2).
Accordingly, Plaintiff was directed to cure the deficiencies in his complaint and
either: (1) name only himself as Plaintiff if he is proceeding pro se, or (2) if he wishes to
pursue claims on his minor child’s behalf, he must be represented by an attorney. In
addition to directing the Plaintiff to cure deficiencies, the Court also denied Plaintiff’s
Emergency Motion for Declaratory Judgment and Injunctive Relief without prejudice
because Plaintiff did not have standing to pursue the case.
Plaintiff has failed to cure the deficiencies regarding his lack of standing. He has
not filed an amended complaint as directed in the Court’s October 8, 2015 Order.
Instead, he has filed an Amended Emergency Motion for Declaratory Judgment and
Injunctive Relief. (ECF No. 11). This Amended Emergency Motion will be denied
because Plaintiff still does not have standing to pursue this case. Accordingly, it is

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ORDERED that Plaintiff’s Amended Emergency Motion for Declaratory Judgment
and Injunctive Relief (ECF No. 11) is DENIED without prejudice.
DATED at Denver, Colorado, this

19th

day of

October

, 2015.

BY THE COURT:
s/Lewis T. Babcock__________________
LEWIS T. BABCOCK, Senior Judge
United States District Court

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