Pineda et al v. Department of Children and Families

Filing 6

Judge William G. Young: MEMORANDUM AND ORDER entered: Plaintiff Alba Pineda's Motion for Leave to Proceed in forma pauperis (Docket No. 2) is ALLOWED; All claims of Plaintiff Alba Pineda's minor children, GG, TG, JG, and VP are DISMISSED without prejudice to renew in 35 days provided the children are represented by duly-licensed counsel who files a Notice of Appearance in this Court;All claims of Plaintiff Alba Pineda brought pursuant to 42 U.S.C. 1983 are DISMISSED based on sovereign immunity; Within 35 days of the date of this Memorandum and Order, plaintiff Alba Pineda shall file an "Amended Complaint" setting forth her claims, including any ADA claim, in accordance with Rule 8 of the Federal Rules of Civil Procedure; and Plaintiff Alba Pineda's Motion to Appoint Counsel (Docket No. 3) is DENIED in its entirety.(PSSA, 1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
ALBA PINEDA, ET AL.,
Plaintiffs,
v.

Civil Action No. 16-12229-WGY

DEPARTMENT OF CHILDREN
AND FAMILIES,
Defendant.
MEMORANDUM AND ORDER
YOUNG, D.J.
I.

Introduction
On October 31, 2016, plaintiff Alba Pineda (“Pineda”), a resident of Cambridge,

Massachusetts, filed a self-prepared Complaint on behalf of herself and her four minor children,
GG, TG, JG and VP. 1 The Complaint is set forth in narrative, letter form, and is not entirely
coherent. From what can be discerned, Pineda sues the Massachusetts Department of Children
and Families (“DCF”) and the DCF office in Cambridge. She seeks $5 million in damages for
alleged physical and emotional harm, abuse of power and control, abuse of discretion, and
violation of rights based on disability.
Specifically, Pineda alleges she is a recovering alcoholic. While not entirely clear, it is
presumed that three of her children are in DCF custody. She claims DCF constantly made
changes to her service plans and canceled overnight visitation with her children, based on DCF
evaluations regarding the safety of the children. She contends that these changes have been

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The names of the minor children are omitted for confidentiality purposes. The Court has
directed the clerk to redact the docket to reflect initials only, and to restrict the view of the
Complaint containing the children’s names.
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arbitrary and “flimsy” and have “deliberately initiated crisis” to her. Comp. (Docket No. 1 at 1).
Pineda alleges that DCF advisors should act as professionals and assist with the healing and
unification of families rather than acting in an adversarial manner.
Next, Pineda claims that DCF views her as the enemy, and expects that she will relapse
back into drug and alcohol use. She claims many members of the DCF office in Cambridge have
expressed to her that they are waiting for this to happen. She alleges that, in fact, DCF workers
have admitted to her that they were watching to see if she can handle stress by setting her up for
failure in the hopes that she will reach a breaking point. Id. She alleges that DCF’s actions have
obstructed her support system and interfered with her attempts to build healthy relationships with
her friends and neighbors, leaving her feeling stigmatized and overwhelmed. She submits that
these actions are cruel and inhumane, and constitute a violation of Title II of the Americans with
Disabilities Act (“ADA”). Further, she claims DCF is manipulating her children, causing them
emotional distress.
Finally, Pineda claims that her attorney has been ineffectual and has accused her of being
abusive. She contends that he has sided with DCF rather than advocating for the best interests of
her children.
Along with the Complaint, Pineda filed a Motions for Leave to Proceed in forma
pauperis (Docket No. 2) and a Motion to Appoint Counsel (Docket No. 3).
II.

Discussion
A.

The Motions for Leave to Proceed In Forma Pauperis

Upon review of Pineda’s financial affidavit, the Court finds that she lacks sufficient funds
to pay the filing and administrative fees for this action. Accordingly, her Motion for Leave to

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Proceed in forma pauperis will be ALLOWED. This court need not address the issue of the
filing fee obligations of the co-plaintiffs (the minor children), for the reasons set forth herein.
B.

Screening of the Complaint

Because Pineda is proceeding in forma pauperis, summonses have not issued in order to
allow the Court an opportunity to review the Complaint to determine if it satisfies the
requirements of section 1915 of Title 28, the federal in forma pauperis statute. See 28 U.S.C.
§ 1915. Section 1915 authorizes the federal courts to dismiss an action in which a plaintiff seeks
to proceed without prepayment of the filing fee if the action lacks an arguable basis either in law
or in fact, Neitzke v. Williams, 490 U.S. 319, 325 (1989), or if the action fails to state a claim on
which relief may be granted, or seeks monetary relief against a defendant who is immune from
such relief. See 28 U.S.C. § 1915 (e)(2)(B)(ii) and (iii). When subject matter jurisdiction is
lacking, there is no arguable or rational basis in law or fact for a claim, Mack v. Massachusetts,
204 F. Supp. 2d 163, 166 (D. Mass. 2002) and the action may be dismissed sua sponte and
without notice. Neitzke, 490 U.S. at 327-328 (interpreting the former § 1915 (d)); accord Denton
v. Hernandez, 504 U.S. 25, 32-33 (1992) (“clearly baseless” actions may be dismissed).
In conducting the preliminary screening, Pineda’s pro se Complaint is construed
generously. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972);
Instituto de Educacion Universal Corp. v. U.S. Dept of Education, 209 F.3d 18, 23 (1st Cir.
2000). Although Pineda does not set forth her legal causes of action clearly, the Court will
consider this action as one for due process violations in connection with her parental rights,
pursuant to 42 U.S.C. § 1983 (the vehicle for asserting alleged civil rights violations by state
actors) and as one for violations of the ADA, 42 U.S.C. § 12132. The Court will not consider the
Complaint as asserting a state-law claim for legal malpractice claim against her attorney, insofar

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as she names only the DCF as a defendant. The Court considers her statements regarding her
attorney merely as background allegations.
With these parameters in mind, even under this broad reading, the claims of the children
shall be dismissed sua sponte, and the claims of Pineda are subject to dismissal in whole or part
for the reasons set forth below.
C.

Pro Se Plaintiff Pineda May Not Represent Her Children

As noted above, the children have not sought leave to proceed in forma pauperis.
Additionally, only Pineda has signed the Complaint. It is clear, however, that Pineda wishes to
bring claims on her own behalf and on behalf of her children. This, she cannot do. Although 28
U.S.C. § 1654 permits persons to proceed pro se, this provision does not allow unlicensed lay
people to represent co-plaintiffs or any other individuals. See Feliciano v. DuBois, 846 F. Supp.
1033, 1039 (D. Mass. 1994); Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir.
1991). Additionally, this Court’s Local Rules do not provide such authorization. See District of
Massachusetts Local Rule 83.5.5 (b) (Practice By Pro Se Litigants). Here, Pineda is not a
licensed attorney and therefore may not represent her children’s interest pro se. 2 For the reasons
set forth below, this Court will not appoint counsel on behalf of the children.

2

“[I]n a civil rights action, ‘parents cannot appear pro se on behalf of their minor children
because a minor’s personal cause of action is her own and does not belong to her parent or
representative.’” E.C. v. Daeschner, 2007 WL 2462182, at *3 (W.D. Ky. 2007) (quoting
Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (§ 1983 action) (other citations
omitted). See Cheung v. Youth Orchestra Foundation of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.
1990) (a non-attorney parent must be represented by counsel in bringing an action on behalf of
the child; “The choice to appear pro se is not a true choice for minors who, under state law, . . .
cannot determine their own legal actions. There is no individual choice to proceed pro se for
courts to respect, and the sole policy at stake concerns the exclusion of non-licensed persons to
appear as attorneys on behalf of others.”) cf., Winkelman ex rel. Winkelman v. Parma City
School Dist., 550 U.S. 516 (2007) (holding that parents had independent, enforceable rights
under the statutory scheme of IDEA, and thus were entitled to prosecute IDEA claims in their
own right).
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Accordingly, all claims of the children are subject DISMISSED without prejudice to
renew within 35 days provided the children are represented by duly-licensed counsel who is
admitted to practice in this Court and who files a Notice of Appearance.
D.

Sovereign Immunity Bars Section 1983 Civil Rights Claims Against the DCF

DCF is an agency of the Commonwealth of Massachusetts and thus is entitled to
sovereign immunity from suit in this Court. See Mass. Gen. Laws ch. 18B, § 1 (Establishment);
110 CMR § 1.00 (Principles and Responsibilities of the Department of Children and Families).
“The Eleventh Amendment bars actions in federal courts claiming damages against a state and its
agencies unless the state has consented to be sued in federal court.” Boulais v. Commonwealth
of Mass., 2002 WL 225936 at *1 (D. Mass. 2002) (citations omitted). See Seminole Tribe of
Florida v. Florida, 517 U.S. 44, 54 (1996); Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)
(unless a State has “waived its Eleventh Amendment immunity or Congress has overridden it
. . . a State cannot be sued directly in its own name regardless of the relief sought.”). Here,
nothing in the Complaint could be construed as presenting claims as to which the
Commonwealth of Massachusetts (including its agency, DCF and its branch in Cambridge) has
waived its sovereign immunity to suit in federal court. This is true with respect to claims under
42 U.S.C. § 1983. See Quern v. Jordan, 440 U.S. 332, 344 (1979) (Congress did not override
state’s Eleventh Amendment immunity in enacting § 1983). 3

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As an additional matter, although Pineda has not named any individual defendants employed
by the DCF, she is advised that the Eleventh Amendment also extends to confer immunity from
suit upon state officials when “the State is the real substantial party in interest,” that is, when
“the judgment sought would expend itself on the public treasury . . . , or interfere with the public
administration . . . . “ Id. at 101-102, n. 11; accord Hafer v. Melo, 502 U.S. 21, 25 (1991)
(same). Thus, should Pineda seek to amend her Complaint to assert claims for monetary relief
pursuant to § 1983 from any of the DCF employees for alleged wrongful actions taken in their
“official” capacities, her claims would not be cognizable. See Will v. Michigan Dept. of State
Police, 491 U.S. 58, 71 (1989) (although state officials are literally persons, a suit against a state
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In light of this, all claims against DCF for civil rights violations pursuant to 42 U.S.C.
§ 1983 are DISMISSED based on sovereign immunity.
E.

Failure to State Plausible Claims For ADA Violations

With respect to Pineda’s claims that DCF’s actions were taken in violation of the ADA,
this claim is not barred by sovereign immunity. See Robyn Powell, Federal Agencies Say State
Cannot Discriminate Against Parents with Disabilities, 34 Child. L. Prac. 46 (2015).
Nevertheless, Pineda fails to set forth any plausible ADA claims in accordance with Rule 8 of
the Federal Rules of Civil Procedure. Rule 8(a) requires a plaintiff to include in the complaint,
inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). This statement must “‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests,’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see
Rivera v. Rhode Island, 402 F.3d 27, 33 (1st Cir. 2005). It must afford the defendant(s) a
“[‘]meaningful opportunity to mount a defense,’” Díaz-Rivera v. Rivera-Rodríguez, 377 F.3d
119, 123 (1st Cir. 2004) (quoting Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1172 (1st
Cir. 1995)). See also Redondo-Borges v. U.S. Dept. of Housing and Urban Dev., 421 F.3d 1, 5
(1st Cir. 2005). “In a civil rights action as in any other action . . . , the complaint should at least
set forth minimal facts as to who did what to whom, when, where, and why.” Educadores
Puertorriqueños en Acción v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004). Although “the
requirements of Rule 8(a)(2) are minimal . . .[,] ‘minimal requirements are not tantamount to
nonexistent requirements.’” Id. (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.

official in his official capacity is not a suit against the official but rather is a suit against the
official's office).
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1988)). Additionally, under Rule 8, a plaintiff must plead more than a mere allegation that the
defendant(s) have harmed him. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (detailed factual
allegations are not required under Rule 8, but a complaint “demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation.” quoting Twombly, 550 U.S. at 555). See Chiang
v. Skeirik, 582 F.3d 238, 244 (1st Cir. 2009) (“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”) (internal citation and
quotation marks omitted).
In order to state an ADA claim under Title II, Pineda must allege: (1) that she “is a
qualified individual with a disability; (2) that [s]he was either excluded from participation in or
denied the benefits of some public entity’s services, programs, or activities or was otherwise
discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by
reason of the plaintiff’s disability.” Buchanan v. Maine, 469 F.3d 158, 170 -171 (1st Cir. 2006)
(citation omitted).
Here, even assuming Pineda has alleged that she is a qualified person with a disability
(alcohol and/or drug use), she fails to set forth any facts whatsoever to support an ADA claim.
For instance, she does not provide the names of persons who allegedly acted for the DCF in a
wrongful fashion based on her disability, nor does she identify the date and place of such alleged
wrongdoings or the services that have been denied to her by reason of her disability. Her bald
and conclusory allegations of disability discrimination are insufficient to state a claim upon
which relief may be granted.
In short, as pled, she fails to meet even the minimum pleading requirements of Rule 8.
Therefore, it would be immensely unfair to the DCF to have to guess at her claims in order to
fashion a meaningful response.

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Accordingly, Pineda’s ADA claims are subject to dismissal pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). 4
F.

The Motion to Appoint Counsel

Under 28 U.S.C. § 1915(e)(1), the court “may request an attorney to represent any person
unable to afford counsel.” 28 U.S.C. § 1915(e)(1). A civil plaintiff, however, lacks a
constitutional right to free counsel. DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). In
order to qualify for appointment of counsel, a party must be indigent and exceptional
circumstances must exist such that denial of counsel will result in fundamental unfairness
impinging on the party’s due process rights. Id. To determine whether exceptional
circumstances sufficient to warrant the appointment of counsel are present in a case, the court
must examine the total situation, focusing on the merits of the case, the complexity of the legal
issues, and the litigant’s ability to represent him or herself. Id. at 24.
The Court considers that Pineda is indigent, unskilled in the law, and has reported that
she has emotional difficulties. Nevertheless, in view of the dismissal of the minor children’s
claims, the dismissal of her § 1983 claims against the DCF, and the failure to state plausible
ADA claims in accordance with Rule 8, this Court cannot find that exceptional circumstances
exist that would warrant appointment of counsel in this case. The Court must balance the merits
of the claim with the expenditure of scarce pro bono resources. On the balance, use of such
resources is not justifiable.

4

In light of the matters contained herein, this Court need not address whether the failure to
allege an inadequate state remedy poses a bar to Pineda’s § 1983 claims, and/or whether the
domestic relations exception should be extended to bar all claims relating to domestic matters.
There are not sufficient facts alleged to make a sua sponte determination with respect to these
matters.
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Accordingly, Pineda’s Motion to Appoint Counsel (Docket No. 3) is DENIED. Further,
for the same reasons, this Court will not appoint counsel for the children.
III.

Conclusion and Order
Based on the foregoing, it is hereby Ordered that:

1.

Plaintiff Alba Pineda’s Motion for Leave to Proceed in forma pauperis (Docket No. 2) is
ALLOWED;

2.

All claims of Plaintiff Alba Pineda’s minor children, GG, TG, JG, and VP are
DISMISSED without prejudice to renew in 35 days provided the children are represented
by duly-licensed counsel who files a Notice of Appearance in this Court;

3.

All claims of Plaintiff Alba Pineda brought pursuant to 42 U.S.C. § 1983 are
DISMISSED based on sovereign immunity;

4.

Within 35 days of the date of this Memorandum and Order, plaintiff Alba Pineda shall
file an “Amended Complaint” setting forth her claims, including any ADA claim, in
accordance with Rule 8 of the Federal Rules of Civil Procedure; and

5.

Plaintiff Alba Pineda’s Motion to Appoint Counsel (Docket No. 3) is DENIED in its
entirety.

SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
UNITED STATES DISTRICT JUDGE
DATED: November 9, 2016

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