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Smith v. Cheyenne Mountain School District 12

United States District Court, D. Colorado

August 12, 2014

R. C. V. SMITH (a minor), by and through his mother, RAMONA SMITH, Plaintiff, named as Petitioner,
v.
CHEYENNE MOUNTAIN SCHOOL DISTRICT 12, and THE COLORADO DEPARTMENT OF EDUCATION, Defendants, named as Respondents.

ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES

BOYD N. BOLAND, Magistrate Judge.

Plaintiff, Ramona Smith, acting pro se, has submitted an unsigned Verified Motion for a Temporary Restraining Order and Preliminary Injunction (ECF No. 1) and an unsigned Motion and Affidavit for Leave to Proceed on Appeal Pursuant to 28 U.S.C. § 1915 and Fed. R. App. P. 24 (ECF No. 3), on behalf of her minor child, R. C.V. Smith. Ramona Smith apparently asserts jurisdiction pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400, et. seq. As part of the court's review pursuant to D.C.COLO.LCivR 8.1, the court has determined that the submitted documents are deficient as described in this order.

Plaintiff lacks standing to represent her minor child in this action. See Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (per curiam). Under Fed.R.Civ.P. 17(c) and 28 U.S.C. § 1654, a minor child "cannot bring suit through a parent acting as next friend if the parent is not represented by an attorney." Id .; accord Osei-Afriyie ex rel. Osei-Afriyie v. Medical College of Pa., 937 F.2d 876, 882-83 (3d Cir. 1991); Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990). The general rule prohibiting non-attorney parents from representing their minor child in federal court is designed to protect the interests of the minor party and guard the judiciary's authority to govern those who practice in its courtrooms. Adams ex re. D.J.W. v. Astrue, 659 F.3d 1297, 1300 (10th Cir. 2011); cf. Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 535 (holding that parents are entitled to prosecute IDEA claims on their own behalf, but explicitly not reaching issue of whether IDEA "entitles [non-attorney] parents to litigate their child's claims pro se. "); Miller ex rel. S.M. v. Board of Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1244 (10th Cir. 2009). Ramona Smith is not represented by an attorney. Therefore, Ramona Smith may not represent her minor child in this action.

Plaintiff will be directed to cure the following if she wishes to pursue her claims. Any papers that Plaintiff files in response to this order must include the civil action number on this order.

Application to Proceed in District Court Without Prepaying Fees or Costs:

(1) __ is not submitted
(2) X is not on proper form (must use the court's current form) Ramona Smith must submit an individual § 1915 motion that only names herself as Plaintiff.
(3) X is missing original signature by Plaintiff
(4) __ is missing affidavit
(5) __ affidavit is incomplete
(6) __ affidavit is not notarized or is not properly notarized
(7) __ names in caption do not match names in caption of complaint, petition or application
(8) X other: Application is necessary only if $400.00 filing fee is not paid in advance.

Complaint or Petition:

(9) X is not submitted
(10) __ is not on proper form (must use the court's current form)
(11) X is missing an original signature by the Plaintiff
(12) __ is incomplete
(13) __ uses et al. instead of listing all parties in caption
(14) __ names in caption do not match names in text
(15) __ addresses must be provided for all defendants/respondents in "Section A. Parties" of complaint, petition or habeas application
(16) X other: Only Ramona Smith, and not her minor child, may be named as Plaintiff if Ramona Smith is proceeding pro se.

Accordingly, it is

ORDERED that Plaintiff cure the deficiencies designated above within thirty (30) days from the date of this order. Any papers that Plaintiff files in response to this order must include the civil action number on this order. It is

FURTHER ORDERED that Plaintiff shall obtain and complete the court-approved forms for filing an Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) and a Complaint, along with the applicable instructions, at www.cod.uscourts.gov, and shall use those forms in curing the designated deficiencies. It is

FURTHER ORDERED that, if Plaintiff fails to cure the designated deficiencies within thirty (30) days from the date of this order, the action will be dismissed without further notice. The dismissal shall be without prejudice.


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