Justice v. Farley
| Decision Date | 20 January 2014 |
| Docket Number | No. 5:13-CV-343-D,5:13-CV-343-D |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | THEODORE JUSTICE, for SON, Plaintiff, v. DR. TIMOTHY FARLEY, Granville County School Superintendent, MARY WATSON, Director Exceptional Children, AUGUSTUS B. ELKINS, Administrative Law Judge, HONORABLE JULIAN B. MANN, ?, Administrative Law Judge, AMY MILLER, Program Director Exceptional Children, MICHAEL ALLEN, Director Exceptional Children, KATHY TWISDALE, Principal Stovall Shaw Elementary, ROBYNN WILLIAMS, Special Education Teacher, JAMES E. CROSS, JR., Attorney Granville County Schools, DALE W. HENSLEY, Attorney Granville County Schools, KATE NEALE, Consultant for Dispute Resolution Department of Public Instruction Exceptional Children Division, Defendants. |
On May 10, 2013, Theodore Justice ("Justice" or "plaintiff"), proceeding pro se, filed this action and paid the filing fee [D.E. 1].1 To the extent Justice seeks to litigate any claim on behalfof his minor child, he has not received court approval. Moreover, although a parent may initiate an action in North Carolina on behalf of a minor, the parent can do so only with court approval. See, e.g., Genesco, Inc. v. Cone Mills Corp., 604 F.2d 281, 285-86 (4th Cir. 1979). Justice has not sought or received such court approval and cannot litigate on behalf of his child pro se. See Myers v. Loudoun Cnty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005); see also Reale v. Wake Cnty. Human Servs., 480 F. App'x 195, 197 (4th Cir. 2012) (per curiam) (unpublished).
Justice names as defendants various individuals connected with the Granville County School System (defendants Farley, Miller, Allen, Twisdale, Williams, Cross, and Hensley) (collectively, "the school defendants"); two individuals connected with the Department of Public Instruction (defendants Neale and Watson) (collectively, "the DPI defendants"); and two Administrative Law Judges with the North Carolina Office of Administrative Hearings (defendants Mann and Elkins) (collectively, "the ALJ defendants"). Justice's complaint asserts violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 42 U.S.C. §§ 1983 and 1985(2), and the Constitution of the United States, and seeks injunctive and declaratory relief, in addition to compensatory and punitive damages and attorney's fees. Compl. [D.E. 1] 8-11. On June 27 and July 3, 2013, the DPI and ALJ defendants moved to dismiss the complaint [D.E. 37, 39, 43]. Pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam), the court notified Justice about the motions to dismiss, the consequences of failing to respond, and the response deadlines [D.E. 41, 45]. Justice timely responded in opposition to the motions [D.E. 42, 46].
On July 19, 2013, the clerk of court denied as premature Justice's motion for entry of default against the ALJ defendants [D.E. 48]. On July 29, 2013, Justice moved to amend his complaint "to include Julie A. Richards Clerk of Court" and add claims against the ALJ and DPI defendants [D.E. 49]. On August 9, 2013, all defendants except Richards moved to dismiss [D.E. 50, 52, 54, 57]. Pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam), the court notified Justice about the motions to dismiss, the consequences of failing to respond, and the response deadlines [D.E. 59]. On August 13, 2013, the school defendants filed a second motion to dismiss [D.E. 60]. On August 15, 2013, Justice responded in opposition to all motions [D.E. 62]. On August 21, 2013, Justice filed a supplemental response [D.E. 63]. On September 5, 2013, Justice filed a "motion to resolve issues insufficient service of process" [D.E. 64]. On September 24, 2013, Justice filed a motion to recover costs pursuant to Federal Rule of Civil Procedure 4 [D.E. 65], to which the ALJ defendants responded in opposition [D.E. 67]. On October 4, 2013, Justice filed a personal affidavit [D.E. 66], together with the affidavit of Mary Odom [D.E. 66-2] and other exhibits [D.E. 66-1]. On November 1, 2013, Justice filed a motion for extension of time to effect service [D.E. 71]. On November 21 and December 3, 2013, defendants filed motions to stay discovery [D.E. 74, 77], to which Justice responded in opposition [D.E. 75, 79]. On December 2, 2013, Justice moved for entry of default as to Richards [D.E. 76]. As explained below, the court grants in part and denies in part the pending motions and dismisses the complaint and amended complaint.
I.
Justice alleges that on March 21, 2012, defendant Twisdale, the school principal at Stovall-Shaw Elementary School, refused to reenroll Justice's son without first meeting with defendant Miller, the school's Exceptional Children Director. Compl. 4. Miller Id. However, the school attorney "intervened and wrote a letter stating the . . . child was permitted to be enrolled," which "infuriated" defendants Miller, Twisdale, and Williams and "made the transition as difficult as possible." Id.
On April 12, 2012, Justice attended an IEP meeting. Compl. 5. Before the meeting, Justice requested a mediator from the North Carolina Department of Public Instruction ("DPF'), but defendant Neale denied the request. Id. Justice asserts that the IEP which resulted from the meeting was "prewritten, pre-determined and [defendant Hensley] was not on the invitation notice . . . and was illegitimately present"; "other members of the meeting would not agree to make any changes to the pre-written IEP"; and that defendant Williams, "author of the pre-written IEP . . . was excused during the meeting," which "ruined . . . any negotiations." Id. On May 23, 2012, Justice filed a contested case in the North Carolina Office of Administrative Hearings ("OAH"), and "a resolution meeting was scheduled for June 18, 2012." Id.
On July 2, 2012, Justice attended another IEP meeting. Compl. 6. Justice alleges that at the meeting, defendant Allen "demanded Plaintiff sign a withdrawal of the [OAH] petition or no IEP meeting would be held." Id. Justice "did sign the form to withdraw in good faith, so the meeting would proceed," but "[n]o agreement was reached" and Justice "attempted to re-instate the petition." Id. Justice alleges that defendants "Elkins and Mann conspiring with [other] [d]efendants closed the matter by court order post dated July 3, 2012 and obstructed telephonic hearings or conferences, filing, [or] refilling (sic) of any petitions." Id. Justice did not file any appeal of the closing of the petition, and did not file any new petition. Hausen Aff. [D.E. 43-4] ¶ 5. Justice's child is now "enroll[ed] in a Charter School" where he "has . . . made extraordinary verifiable progress almost three grade levels in eight months." Compl. 7.
Justice seeks to amend his complaint "to include Defendant Julie A. Richards Clerk of the Court United States District Court Eastern District of North Carolina," based on Richards's alleged refusal to accept filings, denial of his motion for entry of default, "policy to send documents to Wilmington Courthouse," "failure to properly align filing and issuing summons," and "conspiring to discriminate against Plaintiff' with defendants Elkins, Mann, Neal, and Watson. See Prop. Am. Compl. [D.E. 49-1] 3, 5-10.
?.
First, the court addresses Justice's motion to amend [D.E. 49]. A party may amend his pleading once as a matter of course within 21 days after service, or, if it is a pleading requiring a response, within 21 days after service of the response or service of a motion under Rule 12(b), (e), or (f), whichever is earlier. See Fed. R. Civ. P. 15(a)( 1). Otherwise, a party may amend his pleading only with the written consent of the opposing party or by leave of court. Fed. R. Civ. P. 15(a)(2). The court permits the amendment, but dismisses the claims and motions concerning Richards.
"[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid." Ross v. Baron, 493 F. App'x 405, 406 (4th Cir. 2012) (per curiam) (unpublished) (citing Mallard v. U.S. Dist. Court, 490 U.S. 296, 307-08 (1989)); see Goodwin v. Castille, 465 F. App'x 157, 163 (3d Cir. 2012) (per curiam) (unpublished); Webster v. Penzetta, 458 F. App'x 23, 25 (2d Cir. 2012), as amended (Jan. 24, 2012) (per curiam) (unpublished); Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam). "In addition, because a court lacks subject matter jurisdiction over an obviously frivolous complaint, dismissal prior to service of process is permitted." Ross, 493 F. App'x at 406.
The standard used to evaluate the sufficiency of a pleading is flexible, "and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotation omitted). Erickson, however, does not "undermine [the] requirement that apleading contain 'more than labels and conclusions.'" Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see Ashcroft v. Iqbal, 556 U.S. 662, 677-83 (2009); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 132 S. Ct. 1327 (2012); Nemet Chevrolet. Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255-56 (4th Cir. 2009); Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). Additionally, a federal court first must determine whether it has subject-matter jurisdiction. See, e.g., Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479-80 (4th Cir. 2005). Justice, as the party asserting subject-matter jurisdiction, must prove that it exists. See, e.g., Steel Co. v. Citizens for...
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