Prunty v. Secretary, Department of Health and Human Services
Filing
219
OPINION and ORDER adopting in part and modifying in part 217 Magistrate Judge's Report and Recommendation; overrulling 218 Plaintiff's Objection; denying 97 , 177 , 178 Plaintiff's Motions for Leave to File Third Amended Compla int; and dismissing without prejudice 51 Plaintiff's Second Amended Complaint. See Opinion and Order for details. The Clerk shall terminate all pending motions and deadlines as moot, and close the file. Signed by Judge John E. Steele on 12/12/2014. (MAW)
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, ET AL.,
Defendants.
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #217), filed
November 20, 2014, recommending that Plaintiff's Motions for Leave
to File Third Amended Complaint (Docs. ##97, 177, 178) be denied
and that the matter be dismissed with prejudice.
an Objection (Doc. #218) on December 1, 2014.
Plaintiff filed
For the reasons set
forth below, the Magistrate Judge’s Report and Recommendation is
accepted and adopted as modified herein and the case is dismissed
without prejudice.
I.
Plaintiff Robert M. Prunty, Jr., proceeding pro se, brings
this action as next friend of his five minor children.
The
operative pleading is Plaintiff’s Second Amended Complaint (Doc.
#51.)
Construed liberally because of Plaintiff’s pro se status,
Plaintiff brings claims against multiple individual, corporate,
and government defendants under the Florida Deceptive and Unfair
Trade Practices Act (FDUTPA), the Thirteenth Amendment, Title VI
of the Civil Rights Act (Title VI), and for gross negligence.
(Id.)
Plaintiff’s Title VI and Thirteenth Amendment claims are
premised on his allegation that, on account of their race, his
children were not provided with adequate individualized education
plans as required by the Individuals with Disabilities Education
Act (IDEA).
(Id.)
In support of his negligence and FDUTPA
claims, Plaintiff alleges that his minor children were harmed as
a result of their use of the prescription drugs Abilify and
Risperdal, which Plaintiff contends were deceptively labeled and
defectively manufactured.
(Id.)
Multiple Defendants have moved
to dismiss the Second Amended Complaint.
(Docs. ##53, 58, 61, 64,
70.)
On August 27, 2014, the Magistrate Judge advised Plaintiff
that a non-lawyer cannot represent a third-party before the Court
and,
therefore,
because
the
Second
Amended
Complaint
alleged
claims only on behalf of Plaintiff’s children, his case was due to
be dismissed unless he obtained counsel.
(Doc. #173.)
The
Magistrate Judge granted Plaintiff 45 days to obtain counsel and
warned him that a failure to do so would result in a sua sponte
dismissal of his case.
(Id.)
Plaintiff did not obtain counsel.
- 2 -
Instead, Plaintiff filed multiple motions for leave to file a third
amended complaint in an attempt to plead claims on his own behalf
and on behalf of the children’s mother.1
(Docs. ##177, 178.)
The
Magistrate Judge reviewed the proposed third amended complaint,
concluded that amendment would be futile as Plaintiff did not
assert any viable claims brought on his own behalf or on behalf of
the children’s mother, and recommended that the Court dismiss the
case with prejudice.
(Doc. #271.)
II.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation.
28 U.S.C. §
636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir.
2010).
A district judge “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations
636(b)(1)(C).
to
which
objection
is
made.”
28
U.S.C.
§
See also United States v. Farias-Gonzalez, 556 F.3d
1181, 1184 n.1 (11th Cir. 2009).
This requires that the district
judge “give fresh consideration to those issues to which specific
objection has been made by a party.”
Jeffrey S. v. State Bd. of
Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (quoting H.R.
1609, 94th Cong., § 2 (1976)).
The district judge reviews legal
1
One additional motion for leave to amend (Doc. #97) was already
pending at the time of the Magistrate Judge’s order.
- 3 -
conclusions de novo, even in the absence of an objection.
See
Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir.
1994).
III.
After
reviewing
the
Magistrate
Judge’s
findings
and
recommendations, the Court agrees with the Magistrate Judge that
Plaintiff’s case must be dismissed for failing to obtain counsel
to represent his minor children.
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).
As Plaintiff appears to
concede, the Second Amended Complaint does not allege any claims
on Plaintiff’s own behalf.
Plaintiff’s case is therefore subject
to dismissal unless Plaintiff’s proposed third amended complaint
adequately pleads any such claims.
Magistrate Judge, it does not.
As analyzed in detail by the
Accordingly, the Magistrate Judge
concluded that Plaintiff’s requests to amend his complaint must be
denied as futile and his case dismissed.
Plaintiff offers three objections to the Magistrate Judge’s
recommendation.
First, Plaintiff argues that he may proceed pro
se on his IDEA claim because parents are “entitled to prosecute
IDEA claims on their own behalf.” Winkelman v. Parma City Sch.
Dist., 550 U.S. 516, 534 (2007).
- 4 -
Plaintiff is correct that a
parent may qualify as an aggrieved party under the IDEA and,
accordingly, may bring their own causes of action without legal
representation.
Id.
However, before filing a civil action for a
violation of the IDEA, a plaintiff must first exhaust all available
administrative remedies, including a meeting with school officials
and a hearing before an Administrative Law Judge.
J.P. v. Cherokee
Cnty. Bd. of Educ., 218 F. App’x 911, 913 (11th Cir. 2007)
(“The
philosophy of the IDEA is that plaintiffs are required to utilize
the elaborate administrative scheme established by the IDEA before
resorting to the courts to challenge the actions of the local
school authorities.”).
Here, Plaintiff concedes that he bypassed
the administrative process entirely and instead “decided to go
directly to Federal Court.”
(Doc. #218, ¶ 11.)
Accordingly, to
the extent Plaintiff’s IDEA claim is not subject to dismissal for
failure to obtain counsel to represent his minor children, the
claim is subject to dismissal for failure to exhaust administrative
remedies.
Second, Plaintiff argues that he may proceed on his Title VI
cause of action because it is brought on his own behalf and Title
VI does not require administrative exhaustion.
While Plaintiff
is correct that Title VI does not, as a general matter, require
exhaustion of administrative remedies prior to filing suit, Doe v.
Garrett, 903 F.2d 1455, 1460 (11th Cir. 1990), a plaintiff may not
avoid the IDEA’s exhaustion requirements simply by seeking the
- 5 -
same relief via a different statute, Babicz v. Sch. Bd. of Broward
Cnty., 135 F.3d 1420, 1422 n.10 (11th Cir. 1998) (“[A]ny student
who wants relief that is available under the IDEA must use the
IDEA’s
administrative
statute.”)
(internal
system
even
quotation
if
he
invokes
omitted);
see
a
also
different
Loch
v.
Edwardsville Sch. Dist. No. 7, 327 F. App'x 647, 650 (7th Cir.
2009) (affirming dismissal of Title VI claim for lack of exhaustion
where relief sought in Title VI cause of action was access to the
free appropriate public education guaranteed by the IDEA).
Here, Plaintiff explains that his Title VI claim is premised
upon his assertion that, on account of their race, he, his minor
children, and the children’s mother were denied rights afforded to
them by the IDEA.
(Doc. # 178, ¶¶ 63-78; Doc. #218, ¶ 23.)
Such
a claim indisputably seeks relief available under the IDEA and,
therefore,
requires
exhaustion
of
the
remedies.
Babicz, 135 F.3d at 1422 n.10.
IDEA’s
administrative
As explained above,
Plaintiff concedes that he has not done so and therefore his Title
VI claims are subject to dismissal.
Lastly, Plaintiff argues that he has adequately pled causes
of action for negligence and deceptive and unfair trade practices.
However, as detailed by the Magistrate Judge, Plaintiff cannot
proceed on these causes of action because he has failed to allege
that
he
(as
Defendants’
opposed
conduct.
to
his
minor
Indeed,
in
- 6 -
children)
his
was
Objection,
injured
by
Plaintiff
acknowledges that these claims are premised upon injuries suffered
by his minor children as a result of their use of Abilify and
Risperdal.
(Doc. #218, ¶¶ 26, 36.)
Accordingly, these causes
of action belong to Plaintiff’s minor children, and while he may
authorize a lawsuit on their behalf, he must obtain counsel in
order to do so.
Whitehurst, 306 F. App’x at 449.
Therefore, Plaintiff’s objections are overruled and the Court
adopts the Magistrate Judge’s recommendation that Plaintiff’s case
should be dismissed.
However, the Court disagrees with the
Magistrate Judge’s recommendation that the Court dismiss the case
with prejudice.
Instead, the Court will dismiss each of the claims
brought on behalf of Plaintiff’s minor children without prejudice
to
refiling
Plaintiff’s
refiling
should
IDEA
should
Plaintiff
claims
are
Plaintiff
obtain
dismissed
continue
to
counsel.
without
seek
Likewise,
prejudice
relief
to
following
exhaustion of the IDEA’s administrative procedures.
Accordingly, it is now
ORDERED:
1.
ADOPTED
The Report and Recommendation (Doc. #217) is hereby
as
modified
herein
and
the
findings
INCORPORATED
as
modified herein.
2.
Plaintiff's Objection (Doc. #218) is OVERRULED.
3.
Plaintiff’s Motions for Leave to File Third Amended
Complaint (Docs. ##97, 177, 178) are DENIED.
- 7 -
4.
Plaintiff’s
Second
Amended
Complaint
(Doc.
#51)
is
DISMISSED without prejudice.
5.
The
Clerk
shall
terminate
all
pending
motions
and
12th
day
deadlines as moot, and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of December, 2014.
Copies: All Parties of Record
- 8 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?