Prunty v. Secretary, Department of Health and Human Services

Filing 173

ORDER. Plaintiff shall have up to and including October 10, 2014 to obtain counsel to represent the minor plaintiffs. Otherwise, this case could be subject to dismissal without further notice. Granting in part 117 Defendants' Motion to Stay Case Management Report and Discovery. The filing of a case management report is extended until the issue of counsel is resolved. Within 21 days after counsel enters an appearance, the case management report shall be filed with the Court. Signed by Magistrate Judge Carol Mirando on 8/27/2014. (BLW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT R. PRUNTY, JR, as next
friend of minor children; R.R.P, III,
J.B.I.P, J.R.P, M.R.P and M.E.P,
Plaintiff,
v.

Case No: 2:14-cv-313-FtM-29CM

KATHLEEN SIBELIUS,
JOHNSON & JOHNSON
PHARMACEUTICALS, ALEX
GORSKY, COASTAL
BEHAVIORAL HEALTHCARE,
INC., JACK MINGE, JANSSEN
PHARMACEUTICALS, TOM
HEYMAN, BRISTOL-MYERS
SQUIBB, JAMES M. CORNELIUS,
JUSTIN SENIOR, KAREN
BROOKS, KARYN E. GARY,
WEST ELEMENTARY SCHOOL,
PHYLLIS CLEMONS, MEMORIAL
ELEMENTARY SCHOOL, DALE
WOLGAST, PROVIDENCE
SERVICE CORP., WARREN S.
RUSTAND, KINSHUK BOSE,
FLORIDA MEDICAID
DEPARTMENT, U.S.
DEPARTMENT OF HEALTH &
HUMAN SERVICES and DESOTO
COUNTY SCHOOL BOARD,
Defendants.
ORDER
This matter comes before the Court upon review of the file. Plaintiff Robert
M. Prunty, Jr. brings this action pro se as next friend of his five minor children –
RRPIII, MRP, JRP, JBIP and MEP. In Plaintiff’s Second Amended Complaint (Doc.

51), Plaintiff attempts to bring claims against multiple individual corporate and
government defendants under the Florida Deceptive and Unfair Trade Practices Act,
the Thirteenth Amendment and Title VI of the Civil Rights Act, and for gross
negligence. While not entirely clear, Plaintiff complains about the quality of the
education and Individualized Education Plans provided to each of his children by the
Desoto County School District, alleging that his children are intentionally
discriminated against based on their race, color or national origin. He also alleges
under the gross negligence claim that the defendant pharmaceutical companies and
their employees used deceptive labeling on the drugs taken by his disabled children
and otherwise manufacture a defective product.
Standing is a threshold jurisdictional question that “must be addressed prior
to and independent of the merits of a party’s claims.” AT&T Mobility, LLC v. Nat’l

Ass’n for Stock Car Auto Racing, Inc., 494 F.3d 1356, 1359-60 (11th Cir. 2007). Thus,
the Court must consider standing sua sponte. Id. at 1360. The Eleventh Circuit
has held that although “Federal Rule of Civil Procedure 17 authorizes a conservator
or guardian to sue on behalf of a minor child, a non-lawyer parent has no right to
represent a child in an action in the child’s name.” Whitehurst v. Wal-Mart, 306 F.
App’x 446, 449 (11th Cir. 2008) (citing Devine v. Indian River County School Bd., 121
F.3d 576, 581 (11th Cir. 1997)); Wheat v. United States, 486 U.S. 153, 159 (1988)
(“Regardless of his persuasive powers, an advocate who is not a member of the bar
may not represent clients (other than himself) in court.”); Guajardo v. Luna, 432 F.2d
1324 (5th Cir. 1970) (finding court’s rule that nonlawyers may not represent other

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people in litigation to be reasonable); 28 U.S.C. § 1654 (parties may appear on their
own behalf personally or through counsel); M.D. Fla. Rule 2.01(a) (“No person shall
be permitted to appear or be heard as counsel for another in any proceeding in this
Court unless first admitted to practice in the Court pursuant to this rule (or
heretofore admitted under prior rules of the Court).”).
Because Plaintiff is proceeding pro se, his pleadings are held to a less stringent
standard than pleadings drafted by an attorney, and will be liberally construed.

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). Even under a
liberal reading of Plaintiffs’ Second Amended Complaint (Doc. 51), Plaintiff has not
alleged that he has suffered any damages personally. He does not allege that he has
taken any of the drugs at issue nor that his civil rights have been violated because of
the actions of the Defendants. Therefore, any claims which purport to be brought on
behalf of anyone other than Robert R. Prunty, Jr., or to recover for damages alleged
suffered by persons other than Mr. Prunty himself, are due to be dismissed by the
Court sua sponte for lack of standing. 1 Thus, because Plaintiff is proceeding pro se,
he cannot prosecute any claims in federal court on behalf of other persons, including
his own minor children. While Mr. Prunty may bring this action as next friend on
behalf of his minor children pursuant to Federal Rule 17(c), he must obtain counsel
in order to continue. The Court will permit Mr. Prunty 45 days to obtain counsel.

Although Plaintiff has sought leave to amend his complaint (Doc. 97), a review of
the proposed third amended complaint reveals that it would fail for the same reasons, as in
the proposed amended pleading, Mr. Prunty does not allege that he suffered any damages
personally.
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Failure to obtain counsel for the minor plaintiffs could result in this action being
dismissed without further notice. 2
All Defendants have jointly moved to stay the filing of a case management
report and all discovery pending a ruling on the numerous dispositive motions to
dismiss, which assert, among other things, lack of jurisdiction, qualified immunity
and lack of standing. Plaintiff opposes a stay. Doc. 117, 138, 139. The Court is
not inclined to issue a stay in this case until the dispositive motions to dismiss are
ruled upon, but does find that an extension of the deadline to conduct the case
management conference and file the case management report is warranted in this
case while Mr. Prunty obtains counsel. Accordingly, no discovery may occur until
after the parties have conducted the case management conference. See M.D. Fla.
Rule 3.05(c)(2)(B).
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff shall have up to and including October 10, 2014 to obtain

counsel to represent the minor plaintiffs. Counsel shall file an appearance by this
date. Failure to obtain counsel for the minor plaintiffs could result in this matter
being dismissed without further notice.
2.

Defendants’ Motion to Stay Case Management Report and Discovery

(Doc. 117) is GRANTED in part. The filing of a case management report is extended

Even if Mr. Prunty obtains counsel, the Court is making no findings at this time as
to whether the minor children’s Second Amended Complaint (Doc. 51) states a viable claim
for relief.
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until the issue of counsel is resolved.

Within 21 days after counsel enters an

appearance, the case management report shall be filed with the Court.
DONE and ORDERED in Fort Myers, Florida on this 27th day of August, 2014.

Copies:
Counsel of record
Unrepresented parties

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