Gray-Davis v. The State of New York et al

Filing 4

ORDER: It is Ordered that Plaintiff's # 2 Motion for Leave to Proceed in forma pauperis filed by LaFrancis Gray-Davis is GRANTED. It is further Ordered that this action is STAYED for ninety (90) days to give plaintiff time to obtain counsel fo r her minor son. If there is no appearance by counsel on behalf of Plaintiffs minor son on or before March 18, 2015, then the Court will issue a Report and Recommendation to the assigned district court judge recommending that the claims asserted on behalf of the child be dismissed without prejudice. (Status Report due by 3/18/2015). Signed by Magistrate Judge Therese Wiley Dancks on 12/18/2014. {Copy of this Order sent to pro se plaintiff LaFrancis Gray-Davis by regular mail} (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LAFRANCIS GRAY-DAVIS,
on her own and on behalf of her son,
Plaintiffs,
v.

5:14-CV-1490
(GTS/TWD)

STATE OF NEW YORK, et al.,
Defendants.
APPEARANCES
LAFRANCIS GRAY-DAVIS
Plaintiff pro se
439 Gifford Street
Syracuse, NY 13204
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
ORDER
Presently before the Court is a pro se complaint and application to proceed in forma pauperis
filed by Plaintiff LaFrancis Gray-Davis. (Dkt. Nos. 1 and 2.)
Plaintiff has applied to proceed in forma pauperis. (Dkt. No. 2) A court may grant in forma
pauperis status if a party “is unable to pay ” the standard fee for commencing an action. 28 U.S.C. §
1915(a)(1) (2006). After reviewing Plaintiff’s in forma pauperis application (Dkt. No. 2), I find that
Plaintiff meets this standard. Therefore, Plaintiff’s application to proceed in forma pauperis is granted.1
Generally, the Court would conduct an initial review of the complaint pursuant to 28 U.S.C. §
1915(e) immediately after granting the motion to proceed in forma pauperis. Here, however, there is an
impediment to that initial review because Plaintiff lists her minor son as a plaintiff. (Dkt. No. 1 at 1, 2.)

Plaintiff should note that although the application to proceed in forma pauperis has
been granted, Plaintiff will still be required to pay fees that she may incur in this action, including
copying and/or witness fees.
1

Minors cannot appear on their own behalf in federal court. Fed. R. Civ. P. 17. Further, Plaintiff, who is
not an attorney and is not represented by counsel, cannot serve as her child’s representative. “[A] lay
person may not . . . appear on behalf of his or her own minor child.” Iannaccone v. Law, 142 F.3d 553,
558 (2d Cir. 1998). See also Cheung v. Youth Orchestra Found. 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.”); Johns v. Cnty. of San Diego, 114 F.3d 874, 876-77 (9th Cir. 1997) (joining “all other
circuit courts addressing the issue [that] have held that the guardian or parent cannot bring a lawsuit on
behalf of a minor in federal court without retaining a lawyer.”).2 Thus, as this case currently stands,
Plaintiff’s minor son is not properly represented.
The Second Circuit has instructed that a court may not “make a merits determination of claims
filed on behalf of a minor . . . who is not properly represented.” Berrios v. New York City Hous. Auth.,
564 F.3d 130, 134 (2d Cir. 2009). Thus, this Court may not undertake its initial review of the merits of
the complaint before granting Plaintiff an opportunity to obtain counsel or to seek representation from a
pro bono attorney or agency. Id. at 135. Therefore, it is ordered that this case be stayed for ninety days
in order to give Plaintiff time to retain counsel, at least for her minor son. If there is no appearance by
counsel on behalf of Plaintiff’s minor son on or before March 18, 2015, then the Court will issue a
Report and Recommendation to the assigned district court judge recommending that the claims asserted
on behalf of Plaintiff’s minor son be dismissed without prejudice.
ACCORDINGLY, it is
ORDERED that Plaintiff’s application to proceed in forma pauperis (Dkt. No. 2 ) is
Because of statutory language in the Social Security Act, courts generally depart from
this rule in Social Security cases and allow parents to proceed pro se on behalf of their minor
children. See Maldonado v. Apfel, 55 F. Supp. 2d 296, 302 n.7 (S.D.N.Y. 1999) (collecting cases).
2

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GRANTED; and it is further
ORDERED that this case be stayed for ninety days in order to give Plaintiff time to obtain
counsel for her minor son. If there is no appearance by counsel on behalf of Plaintiff’s minor son on or
before March 18, 2015, then the Court will issue a Report and Recommendation to the assigned district
court judge recommending that the claims asserted on behalf of the child be dismissed without
prejudice; and it is further
ORDERED that the Clerk serve a copy of this Order on Plaintiff.

Dated: December 18, 2014
Syracuse, New York

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