Gray et al v. Hawthorne N.Y. Facility

Filing 5

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. SO ORDERED that plaintiff's application to proceed in forma pauperis is granted. However, T.G.'s claims are sua sponte dismissed without prejudice unless counsel enters an a ppearance on her behalf and files an amended complaint in accordance with this order within thirty (30) days of the date that this order is served upon plaintiff. Plaintiff's claims brought on her own behalf are sua sponte dismissed with prejudi ce unless plaintiff files an amended complaint properly stating a claim against deft within thirty (30) days from the date that this order is served upon her. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 4/11/2012. (Florio, Lisa)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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PAMELA M. GRAY and T.G.,

Plaintiffs,
ORDER
-againstHAWTHORNE N.Y. FACILITY,
Defendant.

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12-C)tl~'f:!!~JF)(WDW)
IN CLERK'S OFFICE
U S DISTRICT COURT E D N Y

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APR 1 1 2012

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LONG ISLAND OFFICE

FEUERSTEIN, District Judge:

Before the Court is the complaint of pro se plaintiff Pamela M. Gray ("plaintiff'), brought
on behalf of herself and her minor daughter, T.G. 1 The complaint is accompanied by an
application to proceed in forma pauperis. Since the Court finds that plaintiffs financial position
qualifies her to commence this action without prepayment of the Court's filing fee, plaintiff's
application to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a)(l). However, for
the reasons that follow, the complaint is sua sponte dismissed pursuant to 28 U.S.C. §§
1915(e)(2) and 1915A(b).

I.

Background
The instant complaint is the second pro se complaint filed by plaintiff on behalf of herself

and T.G. The first was filed on August 15,2011 against a defendant identified as "Mercy First."

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The Guidelines for Compliance with the August 2, 2004 Amendments to the EGovernrnent Act of 2002 require that minor children shall be identified in court filings only by
his or her initials, rather than by his or her full name. See Administrative Order 2004-09.
Accordingly, the Clerk of the Court is directed to so amend the caption to reflect only the initials
of the plaintiffs minor daughter.

See Case No. 11-CV -3967. By order dated August 30, 2011 the undersigned sua sponte
dismissed the complaint, noting that plaintiff, as a non-lawyer, could not bring a pro se action on
behalf of her minor daughter in federal court. See id. at Docket Entry No.3. The Court further
noted that plaintiff had failed to state a plausible claim on her own behalf. !d. Plaintiff was
directed to retain counsel for her daughter and to file an amended complaint within thirty (30)
days from the date that the order was served upon her. !d. Plaintiff did not comply with this
order, and on October 12,2011, the Court sua sponte dismissed plaintiff's claims with prejudice
and plaintiffs daughter's claims without prejudice. !d. at Docket Entry No.4.

II.

The Instant Complaint
As she did previously, plaintiff seeks to assert pro se claims on behalf of herself and her

minor daughter. The brief, handwritten complaint is largely illegible. As the Court can best
discern, plaintiffs "statement of claim" alleges in its entirety: "At the [defendant] facility, [T.G.]
was being mistreated out-of-town facility. I found Tuesday she was thru out and [indecipherable]
some boy I never met." Complaint at I. Plaintiff seeks to recover ten thousand dollars ($! 0,000)
for "mistreat[ment] and medical bills I have." !d. at 2.

III.

Discussion
A.

In Forma Pauperis Application

Upon review of plaintiffs declaration in support of her application to proceed in forma
pauperis, the Court finds that plaintiffs financial status qualifies her to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(l). Therefore, plaintiffs request
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to proceed in forma pauperis is granted.

B.

Capacity to Sue

"In the federal courts, 'parties may plead and conduct their own cases personally or by
counsel."' Berrios v. N.Y. City Hous. Auth., 564 F.3d 130, 132 (2d Cir. 2009) (quoting 28
U.S.C. § 1654). "(A]n individual generally has the right to proceed prose with respect to his
own claims or claims against him personally, [but] the statute does not permit unlicensed laymen
to represent anyone else other than themselves." Id. (emphasis in original) (internal citations
omitted).
It is well settled in the Second Circuit that a non-attorney parent may not bring an action
on behalf of his or her minor child. See. e.g., Wenger v. Canastota Central School District, 146
F.3d 123, 125 (2d Cir. 1998), overruled on other grounds by Winkelman v. Parma City School
District, 550 U.S. 516, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007); 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 his or her child"). The Court may not
"make a merits determination of claims filed on behalf of a minor ... who is not properly
represented." Berrios, 564 F.3d at 134. Even if no party raises this issue, it is the district court's
responsibility to address it sua sponte. Wenger, 146 F.3d at 125.
Accordingly, the pro se plaintiff cannot represent her daughter in this case. Plaintiff is
directed, within thirty (30) days from the date that this order is served upon her, to: (I) obtain
counsel to represent her daughter, and (2) file an amended complaint in accordance with this
order. If plaintiff fails to comply with this directive, the claims asserted on behalf of her
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daughter will be dismissed without prejudice?

C.

Rule 8

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain, inter
alia, "a short and plain statement of the claim showing that the pleader is entitled to relief."
Pleadings must give "fair notice of what the ... claim is and the grounds upon which it rests" to
enable the opposing party to answer and prepare for trial, and identify the nature of the case. Bell
Atlantic Com. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1974, 167 L. Ed.2d 929 (2007);
see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992, !52 L. Ed. 2d I
(2002). When a complaint fails to satisfy the Rule 8 pleading standard, a district court may
dismiss the complaint on motion or sua sponte. Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir.
I 995).
Additionally, a complaint must plead facts sufficient "to state a claim to relief that is
plausible on its face." Twombly. 550 U.S. at 570, 127 S. Ct. at 1974. "A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949
(citations omitted). While "detailed factual allegations" are not required, "(a] pleading that offers
'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not
do."' Id. (quoting Twombly, 550 U.S. at 555).
Even liberally construed, plaintiffs prose complaint does not meet the pleading

'The Court has considered whether to appoint pro bono counsel to represent T.G. in this
action. The Court finds that such appointment is not warranted at this time because the present
complaint does not allege a plausible claim. See Case No. 11-CV -3967 at Docket Entry No. 3.
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requirements of Rule 8. Accordingly, the complaint is dismissed in its entirety and, unless an
amended complaint is filed within thirty (30) days of the date this order is served upon plaintiff,
any claims asserted on plaintiff's own behalf will be deemed dismissed with prejudice.

IV.

Conclusion
For the reasons set forth above, plaintiff's application to proceed in forma pauperis is

granted. However, T.G.'s claims are sua sponte dismissed without prejudice unless counsel
enters an appearance on her behalf and files an amended complaint in accordance with this order
within thirty (30) days of the date that this order is served upon plaintiff. Plaintiff's claims
brought on her own behalf are sua sponte dismissed with prejudice unless plaintiff files an
amended complaint properly stating a claim against defendant within thirty (30) days from the
date that this order is served upon her.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d
21 (1962).

SO ORDERED.

s/ Sandra J. Feuerstein
Sllbdra J. Feuers(9!'nUnited States District Judge
Dated:

Aprilll, 2012
Central Islip, New York

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