Crozier v. Westside Cmty. Sch. Dist.

• Decision Date: 02 September 2020
• Docket Number: No. 19-1312,19-1312
• Parties: Warren D. CROZIER, FOR minor A.C.; Paula M. Crozier, for minor A.C., Plaintiffs - Appellants v. WESTSIDE COMMUNITY SCHOOL DISTRICT; Westside Middle School; Elizabeth Meyers, English Teacher; Russell Olsen, Principal Westside Middle School; Enid Schonewise, Assistant Superintendent; Blane McCann, Superintendent, Defendants - Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

973 F.3d 882

Warren D. CROZIER, FOR minor A.C.; Paula M. Crozier, for minor A.C., Plaintiffs - Appellants

v.WESTSIDE COMMUNITY SCHOOL DISTRICT; Westside Middle School; Elizabeth Meyers, English Teacher; Russell Olsen, Principal Westside Middle School; Enid Schonewise, Assistant Superintendent; Blane McCann, Superintendent, Defendants - Appellees

No. 19-1312

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2020

Filed: September 2, 2020

Tillman J. Breckenridge, Breckenridge PLLC, Washington, DC, Morgan R. Knudtsen, William & Mary Law School, Williamsburg, VA, for Plaintiff-Appellant Warren D. Crozier, for minor A.C.

Warren D. Crozier, Omaha, NE, Pro Se.

Tillman J. Breckenridge, Breckenridge PLLC, Washington, DC, Morgan R. Knudtsen, William & Mary Law School, Williamsburg, VA, for Plaintiff-Appellant Paula M. Crozier, for minor A.C.

Paula M. Crozier, Omaha, NE, Pro Se.

Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges.

PER CURIAM.

On behalf of A.C., their minor child, Warren D. and Paula M. Crozier completed the pro se "Complaint for Violation of Civil Rights" form in the district court. They sued A.C.’s teacher, her school, the school district, and three administrators for allegedly violating A.C.’s rights under the First Amendment and the Equal Protection Clause. The district court ruled that the Croziers could not represent A.C.’s interests pro se . The court dismissed the action without prejudice. The Croziers were unable to find counsel, refiled, and requested appointed counsel. The district court rejected the request because the claims were "not likely to be of substance," again dismissing the action without prejudice. The Croziers appeal. We affirm the district court's ruling that the parents may not represent A.C. pro se , but we reverse and remand with directions to request counsel to represent the plaintiffs.

I.

When reviewing an order dismissing a pro se complaint, "the complaint is to be liberally construed, the facts taken in the light most favorable to the plaintiff, and all well-pleaded allegations considered to be true." Martin-Trigona v. Stewart , 691 F.2d 856, 858 (8th Cir. 1982) (per curiam).

In the fall of 2016, A.C. was a student at Westside Middle School in Omaha, Nebraska. The complaint alleges that a teacher assigned A.C.’s eighth-grade class to watch a video about athletes kneeling during the national anthem. The week before, it is alleged, there were "violent race riots" in North Carolina that "were spurred by the shooting of an unarmed black man by a police officer." In that context, during a "critical thinking" discussion, the teacher called on A.C. to share her ideas. A.C. demurred, but the teacher insisted that A.C. answer.

A.C. then expressed her view that "kneeling was disrespectful to law enforcement and military, and questioned that this violence could have stemmed from music lyrics that said such things as ‘F-the Police, and the use of the N-word.’ " (A.C. employed euphemisms in her comments and did not use profanity or the actual "N-word.") When the teacher demanded to know where A.C. obtained this information, she answered, "from the media." To explain further, A.C. shared an example from the previous school year when she overheard a conversation between two seventh-grade students, one black and one white; the white student asked why he couldn't say the "N-word" when the black student could. The teacher then interrupted A.C. and directed her to stop speaking. The Croziers allege that if A.C. had been permitted to finish, she would have expressed her view that no one should use the "N-word."

A.C. stayed home from school the next day due to illness. The teacher allegedly "told several class periods worth of students that A.C. was a racist." The Croziers allege that the teacher "lied to intentionally defame and label A.C. as a ‘racist who said the N-word.’ " They assert that the teacher, in speaking to other students, "made the supposition that A.C. was home that day due to suspension," even though she knew that A.C. was home sick. The Croziers allege that the teacher admitted branding A.C. a racist: when A.C.’s mother later told the teacher that it was "entirely unfair that [she] labeled A.C. a racist," the teacher "rolled her eyes and smugly responded, ‘I do not believe that to be unfair.’ "

As a result of this alleged retaliation, the Croziers claim, A.C. was taunted by other students who "heard what [she] said," and A.C. feared for her safety if she returned to school. Some students sent A.C. text messages asking if she was suspended. When she returned to school, some called out to her in the halls. To avoid "sneering and bullying," she removed herself to the Dean's office to do schoolwork, and began eating lunch in bathroom stalls to avoid anyone who could harm her. She allegedly suffered emotional distress, anxiety, and depressive thoughts.

After meeting with the principal and assistant superintendent, the Croziers removed A.C. from school and began schooling her at home. A month after the classroom discussion, A.C. called a suicide hotline, described how the teacher's actions had caused her harm, and said that she wanted to kill herself. She twice attempted suicide. A.C. entered therapy and for a time was under 24-hour suicide watch. The Croziers later transferred A.C. to a new school.

The Croziers contacted eight lawyers about A.C.’s case but were unable to retain one. On behalf of A.C., they filed the pro se lawsuit under 42 U.S.C. § 1983. The Croziers alleged injuries to A.C., and also claimed that due to A.C.’s depression and anxiety, they themselves "sustained physical, monetary and emotional damages as well through financial losses in business, employment and home."

The court ruled that the Croziers could not serve pro se as A.C.’s representatives and lacked standing "to bring individual § 1983 claims that only derive from alleged violations of their minor child's constitutional rights." Crozier v. Westside Cmty. Sch. Dist. , No. 8:18CV438, 2018 WL 5298744, at *4 (D. Neb. Oct. 25, 2018) ( Crozier I ). The court dismissed the action without prejudice. The court stated that if the Croziers could not find counsel, they could refile and request a court-appointed lawyer.

The Croziers contacted twenty-seven more lawyers, Nebraska Legal Aid, and a legal clinic at a local law school, without success. The lawyers gave various reasons for declining, including lack of qualifications for the case, workload, lack of interest in the case, and conflicts of interest. The Croziers refiled, requesting court-appointed counsel. The district court refused because (1) the § 1983 claims were "not likely to be of substance," and (2) A.C. lacked standing for declaratory and injunctive relief, as she was no longer a student at Westside. Crozier v. Westside Cmty. Sch. Dist. , No. 8:18CV541, 2019 WL 249399, at *8-9 (D. Neb. Jan. 17, 2019) ( Crozier II ). The court again dismissed without prejudice. The Croziers appeal, arguing (1) they should be allowed to proceed pro se on behalf of their minor child; and (2) the district court abused its discretion by not appointing counsel.

II.

Non-attorney parents cannot litigate pro se on behalf of their minor children, even if the minors cannot then bring the claim themselves. See Myers v. Loudoun Cty. Pub. Schs. , 418 F.3d 395, 401 (4th Cir. 2005) (collecting cases) ("We therefore join the vast majority of our sister circuits in holding that non-attorney parents generally may not litigate the claims of their minor children in federal court."); United States v. Agofsky , 20 F.3d 866, 872 (8th Cir. 1994) (observing in a criminal case, a non-lawyer parent "lacked authority to act as an attorney before the court" on behalf of her minor children). See also Udoh v. Minn. Dep't of Human Servs. , 735 F. App'x. 906, 907 (8th Cir. 2018) (per curiam) (affirming dismissal without prejudice of constitutional claims plaintiffs "attempted to assert on behalf of their minor daughters."); Buckley v. Dowdle , No. 08-1005, 2009 WL 750122, at *1 (8th Cir. Mar. 24, 2009) (per curiam) (same for minor daughter); Bower v. Springfield R-12 Sch. Dist. , 263 F. App'x 542, 543 (8th Cir. 2008) (per curiam) (same for minor children).

True, the rule prohibiting parents from representing their children may not be "ironclad." See Adams ex rel. D.J.W. v. Astrue , 659 F.3d 1297, 1300 (10th Cir. 2011). Parents may litigate pro se if their minor child is denied social security benefits. Id. ; Machadio v. Apfel , 276 F.3d 103, 107 (2d Cir. 2002) ; Harris v. Apfel , 209 F.3d 413, 417 (5th Cir. 2000). Cf. Winkelman ex rel. Winkelman v. Parma City Sch. Dist. , 550 U.S. 516, 535, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007) (concluding that the Court "need not reach petitioners’ alternative argument, which concerns whether [the Individuals with Disabilities Education Act] entitles parents to litigate their child's claims pro se ."). However, "no comparable exception has ever been recognized for a lawsuit based on § 1983 or general state tort law." Elustra v. Mineo , 595 F.3d 699, 705 (7th Cir. 2010).

The Croziers argue that the district court's enforcement of the rule "prevents indigent parents from exercising their child's fundamental right to access the courts." We review this question of law de novo. United States v. Galloway , 976 F.2d 414, 419 (8th Cir. 1992) (en banc).

"[T]he right of access to federal courts is not a free-floating right, but rather is subject to Congress’ Article III power to set limits on federal jurisdiction." Murray v. Dosal , 150 F.3d 814, 817 (8th Cir. 1998) (per curiam) (quoting Roller v. Gunn , 107 F.3d 227, 231 (4th Cir. 1997) ). Congress has prescribed that in federal court, litigants may plead and conduct "their own cases personally." 28 U.S.C. § 1654. As authorized by Congress, A.C.’s capacity to sue in federal court is determined by the law of her domicile. See Fed. R. Civ. P. 17(b)(1) ; 28 U.S.C. § 2072 (authorizing the Supreme Court to "prescribe...