United States District Court, D. Colorado
B.S.M., individually and as next friend of K.L.M. Plaintiff,
MAPLETON PUBLIC SCHOOLS, MARY B. MCWILLIAMS, ADAMS COUNTY, and JOHN DOES 1-5, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court sua sponte after Plaintiff
failed to appear at the November 1, 2018 hearing and did not
respond to an order to show cause even after I granted him a
thirty-day extension to do so. For the reasons that follow, I
respectfully recommend that this case be dismissed without
counsel withdrew from this case due to medical problems.
See ECF Nos. 52, 54, 56. On October 22, 2018, I
issued a Minute Order that set a hearing on November 1, 2018,
and directed Plaintiff B.S.M. “to participate and to
advise this Court whether he intends to proceed pro se,
engage another attorney, or dismiss the case without
prejudice.” ECF No. 54. The Order also cautioned that
“[i]f Plaintiff does not appear, I will recommend that
the case be dismissed for failure to prosecute.”
Id. Plaintiff did not appear even though his former
counsel certified that he provided Plaintiff with notice of
the hearing via U.S. mail and e-mail. See ECF No.
55. During the hearing, the Court was unable to contact
Plaintiff because his name and contact information were not
on file. Following the hearing, the Court asked for and
received the necessary contact information from
Plaintiff's former counsel via e-mail. That information
has been filed under seal at Restriction Level 3 and is
accessible only to the Court. See ECF No. 61. On
November 1, 2018, I issued an Order Directing Plaintiff to
Show Cause for Failure to Appear. See ECF No. 62.
considering Plaintiff's Response and Request for
Extension of Time to Show Cause for Failure to Appear,
see ECF No. 65, I issued a Minute Order granting
Plaintiff until December 17, 2018, to respond to the show
cause order. Plaintiff has failed to respond to the show
cause order or otherwise demonstrate why this case should not
be dismissed for failure to prosecute. Therefore, dismissal
without prejudice of Plaintiff B.S.M.'s claims is
Plaintiff B.S.M. may not allege claims on behalf of his minor
daughter. A pro se litigant may not represent another pro se
litigant in federal court. See 28 U.S.C. §
1654. Further, Plaintiff lacks standing to represent his
minor child in this action. See Meeker v. Kercher,
782 F.2d 153, 154 (10th Cir. 1986) (per curiam).
“[U]nder 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. Med. Coll. 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 a non-attorney parent from
representing his or her 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 rel. 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 (2007) (holding that parents are entitled
to prosecute IDEA claims on their own behalf, but expressly
not reaching issue of whether IDEA “entitles
[non-attorney] parents to litigate their child's claims
pro se”); Miller ex rel SM. v. Bd of Educ.
of Albuquerque Pub. Sch, 565 F.3d 1232, 1244 (10th Cir.
2009). Plaintiff B.S.M. is not represented by an attorney.
Therefore, he may not represent his minor child in this
action. Accordingly, dismissal without prejudice of any
claims purportedly alleged by the minor child is warranted.
on the reasoning set forth above and on Fed.R.Civ.P. 41(b), I
respectfully recommend that the District
Court dismiss the case without prejudice.
Be advised that all parties shall have
fourteen (14) days after service hereof to serve and file any
written objections in order to obtain reconsideration by the
District Judge to whom this case is assigned. Fed.R.Civ.P.
72. The party filing objections must specifically identify
those findings or recommendations to which the objections are
being made. The District Court need not consider frivolous,
conclusive or general objections. A party's failure to
file such written objections to proposed findings and
recommendations contained in this report may bar the party
from a de novo determination by the District Judge
of the proposed findings and recommendations. United
States v. Raddatz,447 U.S. 667, 676-83 (1980); 28
U.S.C. § 636(b)(1). Additionally, the failure to file
written objections to the proposed findings and
recommendations within fourteen (14) days after being served
with a copy may bar the aggrieved party from appealing the