DeVary et al v. Cecil County Courthouse

Filing 5

MEMORANDUM. Signed by Judge Gregory M. Sleet on 5/29/2018. (crb)

Case 1:18-cv-00345-GMS Document 5 Filed 05/30/18 Page 1 of 4 PageID #: 19

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA WARE
WILLIAM H. DEVARY, JR., on behalf of B.D.,
a minor child,
Plaintiff,
V.

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Civ. No. 18-345-GMS

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CECIL COUNTY COURTHOUSE,
Defendant.

MEMORANDUM
I.

INTRODUCTION
The plaintiff, William H . DeVary, Jr. ("De Vary"), on behalf of B.D., a minor child,

appears pro se and was granted permission to proceed in for ma pauper is. (D .I. 4.) De Vary filed
this lawsuit on March 5, 2018. (D.1. 2.) The court proceeds to review and screen the complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B).

II.

BACKGROUND
DeVary is the father of B.D. He alleges that he filed a child abuse complaint against

Jessica Gregg ("Gregg"), who appears to be the mother of B.D. A hearing in Delaware was set
for December 7, 2017. On the same day, Gregg obtained a no contact order against De Vary in
the State of Maryland. De Vary alleges there was no evidence of abuse to justify granting the no
contact order. Gregg did not appear at the December 7, 2017 protection from abuse order
("PF A") hearing in Delaware.
De Vary was advised that Pennsylvania had legal jurisdiction of B.D. De Vary appealed
the no contact order, and the appeal was denied. DeVary alleges that the no contact order keeps

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B.D. in "severe emotional child abuse." He alleges that the Maryland order has stopped him
from getting B.D. the help he badly needs.
For relief De Vary seeks $500 million in compensatory damages and the enactment of a
law "that once a CPS complaint is filed, all states know that CPS are looking for them" and a
"law that a no contact order cannot keep a child in abuse." (D.I. 2 at 7).

III.

STANDARD OF REVIEW
Federal district courts, as courts of limited jurisdiction, have a continuing duty to satisfy

themselves of jurisdiction before addressing the merits of the case. Packard v. Provident Nat 'l

Bank, 994 F.2d 1039, 1049 (3d Cir. 1993). In addition, federal courts have the obligation to
address the question of subject matter jurisdiction sua sponte. Meritcare, Inc. v. St. Paul

Mercury Ins. Co., 166 F.3d 214,217 (3d Cir. 1999), abrogated on other grounds by Exxon Mobil
Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005). If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3).

IV.

DISCUSSION
Initially, the court notes that in the federal courts of the Third Circuit, parents cannot

represent their children prose. Indeed, it is well-established that the right to proceed prose in
federal court does not give non-lawyer parents the right to represent their children in proceedings
before a federal court. See JR. v. Lehigh Cnty., 534 F. App'x 104, 108 (3d Cir. 2013)
(unpublished); but see Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516
(2007) (because parents enjoy rights under the IDEA, they are entitled to prosecute IDEA claims
. on their own behalf). It appears that DeVary intends to assert claims on behalf of his son.
Although litigants can act as their own counsel under 28 U.S.C. § 1654, the statute does not
authorize non-attorneys to represent the interests of others in the litigation, such as, a non-

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attorney parent representing a child. See Osei -Afriyie v. Medical College of Pa., 937 F.2d 876,
882 (3d Cir. 1991 ).
Liberally construing the complaint, De Vary seems to allege that he was injured by the
Cecil County Courthouse when the mother of B.D. sought, and was given, a no contact order
against him. De Vary states diversity of citizenship as a basis for jurisdiction. (D.I. 2 at 1 II.)
The sole defendant is the Cecil County Courthouse in Elkton, Maryland. De Vary is a
citizen of the State of Delaware. The complaint indicates that the Cecil County Courthouse is
located in the State of Maryland. Following the reasoning of the Third Circuit in Benn v. First
Judicial Dist. of Pa., the court concludes that the Cecil County Courthouse is a state entity.
Benn, 426 F.3d 233, 239-40 (3d Cir. 2005) (concluding that Pennsylvania's First Judicial District
is a state entity entitled to Eleventh Amendment immunity).

It is well established that a state is not considered a citizen for purposes of diversity
jurisdiction. A suit between a state and a citizen of another state is not a suit between citizens of
different states for purposes of diversity jurisdiction and federal courts have no jurisdiction over
such matters unless they "arise[ ] under the Constitution, laws or treaties of the United States."
State Highway Comm 'n of Wyoming v. Utah Constr. Co. , 278 U.S. 194, 200 (1929); see also
Harris v. Pennsylvania Tpk. Comm'n, 410 F.2d 1332, 1333 n.l (3d Cir. 1969) ("Since neither a
state nor its alter ego is a citizen for purposes of diversity jurisdiction, a suit between a state, or
its alter ego, and a citizen of another state is not a suit between citizens of different states and
diversity jurisdiction does not exist.").
There is no diversity between the parties for purposes of federal jurisdiction. Therefore,
the complaint will be dismissed for lack of jurisdiction.

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V.

CONCLUSION
For the reasons discussed, the court will dismiss the complaint for lack of jurisdiction.
An appropriate order will be entered.

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