Prafada v. Mesa Unified School District

          ORDER

          David G. Campbell Senior United States District Judge.

         Defendant Mesa Unified School District^[1] moves to dismiss pro se Plaintiff Anne Prafada's complaint. Doc. 51. The motion is fully briefed, and oral argument will not aid the Court's decision. Docs. 57, 61. Defendant also moves to strike two of Plaintiff's filings (Docs. 63, 64, 65; Docs. 66, 68), and Plaintiff moves for a preliminary injunction and three-judge panel (Doc. 58). For the following reasons, the Court will grant Defendant's motion to dismiss and deny all other motions as moot.^[2]

         I. Background.

         The Court takes the allegations of Plaintiff's complaint as true for purposes of a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff's son, M., is eligible for special education services and attends or attended one of Defendant's schools. Doc. 25 at 10-11, 15. M. has been diagnosed with several conditions and manifests various behaviors, including depression, anxiety, attention deficit hyperactivity disorder, poor concentration, outbursts, and a need for repeated redirection. Id. at 15-16. On March 6, 2018, Plaintiff sued individually and on behalf of M., alleging Defendant violated her rights and M.'s right to a free appropriate public education, discriminated against M. and Plaintiff, and retaliated against M. and Plaintiff with threats of criminal prosecution. Id. at 10, 16-17.

         II. Legal Standard.

         A successful motion to dismiss under Rule 12(b)(6) must show either that the complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A complaint that sets forth a cognizable legal theory will survive a motion to dismiss as long as it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 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.” Id., 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).

         III. Defendant's Motion to Dismiss.

         Defendant argues that Plaintiff may not assert claims on behalf of M. because she is pro se and, as a non-attorney, she may not represent her son. Doc. 51 at 5. Defendant also argues Plaintiff fails to state a claim for relief. Id. at 1.

         A. Plaintiff's Claims on Behalf of M.

         “In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.” 28 U.S.C. § 1654. The website for the U.S. District Court of Arizona, to which the Court directed Plaintiff, states the relevant local rule:

The right to appear pro se in a civil case in federal court is contained in a statute, 28 U.S.C. § 1654. Thus, anyone can appear pro se, and anyone who appears before the Court without an attorney is considered pro se. There are, however, certain limitations to self-representation, such as: . . . A non-attorney parent may not appear pro se on behalf of a child, except to appeal the denial of the child's social security benefits.

Proceeding Without an Attorney, United States District Court, District of Arizona (Oct. 2, 2018), http://www.azd.uscourts.gov/proceeding-without-attorney. Under the rules in this district, Plaintiff may not appear on M.'s behalf because she is not appealing a denial of social security benefits. See Doc. 25.

         During a conference with the parties on May 3, 2018, the Court directed Plaintiff to identify authority which permits her to represent her son as a pro se litigant.^[3]Plaintiff's response to Defendant's motion does not address 28 U.S.C. § 1654 or the local rule. See Doc. 57 at 13-17. Rather, Plaintiff cites Federal Rule of Civil Procedure 17(c) and 42 U.S.C. § 1983. Rule 17(c) lists which “representatives may sue or defend on behalf of a minor or an incompetent person.” It does not contradict 28 U.S.C. § 1654 or authorize Plaintiff to sue pro se on behalf of her son. As the Ninth Circuit has noted, “a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child.” Johns v. Cty. of San Diego, 114 F.3d 874, 876 (9th Cir. 1997); see also Davis v. Walker, 745 F.3d 1003, 1310 (9th Cir. 2014) (“The purpose of Rule 17(c) is to protect an incompetent person's interests in prosecuting or defending a lawsuit.”); cf. C.E. Pop Equity Trust v. United States, 818 F.2d 695, 697-98 (9th Cir. 1987) (“The Trusts' reliance on [Rule 17(a)] is also misplaced. Rule 17(a) authorizes a trustee of an express trust to sue on behalf of the trust, without joining persons ‘for whose benefit the action is brought;' the rule does not warrant the conclusion that a nonlawyer can maintain such a suit in propria persona.”). Plaintiff does not explain how 42 U.S.C. § 1983 authorizes her pro se representation of M. (Doc. 57 at 13), and nothing in the statute addresses pro se representation. See 42 U.S.C. § 1983.

         Plaintiff's second amended complaint states she “brings this case on behalf of her son, M., ” and cites Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007). Doc. 25 at 10 ¶2. Winkelman held that “[p]arents enjoy rights under [the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”)]; and they are, as a result, entitled to prosecute IDEA claims on their own behalf.” Winkelman, 550 U.S. at 535. But granting a parent the right to sue on her own behalf does not authorize her to represent her child in court. The Supreme Court expressly declined to reach the question of “whether IDEA entitles parents to litigate their child's claims pro se.” Id.

         Plaintiff is not licensed to practice law. She may not represent her son in this case. The Court accordingly will dismiss all claims Plaintiff asserts on M.'s behalf. See Doc. 57.

         B. Plaintiff's ...