H.B. v. Dudley District Court

Filing 6

Magistrate Judge David H. Hennessy: ORDER entered granting 3 Motion for Leave to Proceed in forma pauperis; denying without prejudice 4 Motion for tolling cause of action. (Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
H.B. (Arthur Burnham, father and next
friend),
Plaintiff,
v.
SOUTHBRIDGE POLICE DEPARTMENT,
Defendant.
H.B. (Arthur Burnham, father and next
friend),
Plaintiff,
v.
DUDLEY DISTRICT COURT,
Defendant.
K.B. (Arthur Burnham, father and next
friend),
Plaintiff,
v.
SOUTHBRIDGE POLICE DEPARTMENT,
Defendant.

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CIVIL ACTION
NO. 15-40033-DHH

CIVIL ACTION
NO. 15-40034-DHH

CIVIL ACTION
NO. 15-40039-DHH

MEMORANDUM AND ORDER
September 25, 2015
HENNESSY, M.J.
For the reasons stated below, the Court (1) grants the motions for leave to proceed in
forma pauperis; (2) directs Arthur Burnham to retain counsel; and (3) denies without prejudice
the motions to toll the actions.
Background
Arthur Burnham (“Burnham”), who is currently incarcerated,1 filed the three above-

1

At the time he filed the actions, Burnham represented that he was homeless at the time
he filed the actions. He later informed the Court that he is confined at the Worcester County Jail
and House of Corrections.

captioned actions on behalf of his two minor children. In the three complaints, signed by
Burnham, he alleges that his children were severely, emotionally injured by seeing harm
inflicted on their father by the defendants, the Southbridge Police Department and the Dudley
District Court. He also alleges that their relationship with them deteriorated because of the
psychological injury he suffered from the defendants’ conduct. In two of the actions, Burnham
alleges that his injury stemmed from the reckless distribution of a videotape of him at a police
station holding cell while he was having a medical emergency. A motion for leave to proceed in
forma pauperis was filed with each complaint, and, in two of the actions Burnham filed motions
asking that the statute of limitations be tolled.
Discussion
I.

Motions for Leave to Proceed In Forma Pauperis
Upon review of the motions for leave to proceed in forma pauperis, the Court concludes

that the plaintiff is without assets or income to pay the filing fees. The Court therefore grants the
motions.
II.

Plaintiff Must Be Represented by Counsel
These lawsuits cannot go forward at this time because Burnham cannot sue on behalf of

his children without representation by counsel.
A individual with capacity to sue or be sued may represent his or her own interests in
federal court without the aid of counsel. See 28 U.S.C. § 1654. This statutory right “reflects a
respect for the choice of an individual citizen to plead his or her own cause.” Cheung v. Youth
Orchestra Found. of Buffalo, Inc. 906 F.2d 61 (2d Cir. 1990), cited with approval in O’Diah v.
Volkswagen of America, Inc., 91 Fed. Appx. 159, 160 (1st Cir. 2004) (per curiam); see also
Andrews v. Bechtel Power Corp., 780 F.2d 124, 137 (1st Cir. 1985) (“Section 1654 . . . calls
back visions of days when much litigation . . . was carried on by strong self-reliant citizens who
preferred to appeal to the sense of justice of ‘the country’ rather than entrust their causes to
lawyers trained in the intricacies of the law.”).

2

However, “a non-attorney parent must be represented by counsel in bringing an action
on behalf of his or her child.” Cheung, 906 F.2d at 61.” Minor children do not have capacity to
prosecute their own claims; they must sue by a guardian, next friend, or other representative.
See Fed. R. Civ. P. 17(b). Where individuals lack capacity to sue due to minority, “[t]here is . . .
no individual choice to proceed pro se for the courts to respect,” and it is not in their interest to
be represented by non-attorneys. Cheung, 906 F.2d at 61.
Thus, if Burnham would like to serve as a “next friend” on behalf of his children, he must
be represented by counsel.
II.

Court Declines 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). However, a civil plaintiff lacks a
constitutional right to free counsel. See DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991).
To qualify for appointment of counsel, a party must be indigent and exceptional circumstances
must exist such that the denial of counsel will result in fundamental unfairness impinging on the
party’s due process rights. See id. To determine whether there are exceptional circumstances
sufficient to warrant the appointment of counsel, a court must examine the total situation,
focusing on the merits of the case and the complexity of the legal issues, and any other relevant
factors. See id. at 24.
Here, the Court declines to appoint counsel because the merit of any federal claims is
questionable.2 Even assuming, for purposes of this order, that the complaints meet the pleading
requirements of Rule 8(a) of the Federal Rules of Civil Procedure, it does not appear that the
factual allegations support a claim arising under federal law.
Burnham does not identify the particular claims he is asserting on behalf of his children.

2

The only possible basis for jurisdiction of these cases would be if the plaintiff stated
claims arising under federal law. See 28 U.S.C. § 1331. Federal district courts also have
jurisdiction over claims arising under state law, but only if the plaintiff and defendants are not
citizens of the same state. See 28 U.S.C. § 1332.
3

Given the nature of the allegations, the Court assumes that he is attempting to bring a claim
under 42 U.S.C. § 1983 (“§ 1983”). This statute provides that any “person,” acting under the
color of state law, who “subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C.
§ 1983. However, the Court cannot discern any right of the minor children that may have been
violated by the alleged wrongdoing set forth in the complaints. Even if the law enforcement or
court personnel violated Burnham’s federal constitutional rights, the resulting emotional distress
to his children does not necessarily give rise to a § 1983 claim. Only the direct victims of
unconstitutional conduct may state a claim under § 1983. See, e.g., Claybrook v. Birchwell, 199
F.3d 350, 357 (6th Cir. 2000) (§ 1983 claim is “entirely personal to the direct victim of the
alleged constitutional tort”); Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir. 1990) (same); cf.
Robles-Vazquez v. Tirado Garcia, 110 F.3d 204, 206 n.4 (1st Cir. 1997) (“State action that
affects the parental relationship only incidentally, however, even though the deprivation may be
permanent . . . is not sufficient to establish a violation of a [sic] identified liberty interest.”
(quoting Pittsley v. Warish, 927 F.2d 3, 8 (1st Cir.1991))). Thus, “no cause of action may lie
under section 1983 for emotional distress, loss of a loved one, or any other consequent collateral
injuries allegedly suffered personally by the victim’s family members.” Claybrook, 199 F.3d at
357.
III.

Motions to Toll Cause of Action
The motions to toll the causes of action are denied without prejudice. Should these

lawsuits go forward and the defendants move to dismiss the complaints as time-barred, Burnham
may raise the issue of tolling of the limitations period at that time.

4

Conclusion
For the foregoing reasons:
1.

The motions for leave to proceed in forma pauperis filed in all three actions are

GRANTED.
2.

Burnham is directed to find counsel to represent him in these actions that he is

bringing on behalf of his children. Each of these actions may be subject to dismissal unless,
within 42 days of the date of this order, counsel files a notice of appearance in these cases.
3.

The motions to toll the actions are DENIED WITHOUT PREJUDICE.

SO ORDERED.
/s/ David H. Hennessy
DAVID H. HENNESSY
UNITED STATES MAGISTRATE JUDGE

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