Tindall v. Poultney High School Dist.

• Decision Date: 05 July 2005
• Docket Number: Docket No. 03-7650.
• Citation: 414 F.3d 281
• Parties: K C TINDALL, in the matter of appeal of Vermont Special Education Due Process Case No. 99-12 K.T., parent and next friend of Kyle Tindall, Plaintiff, Dianne Tindall, in the matter of appeal of Vermont Special Education Due Process Case No. 99-12 K.T., parent and next friend of Kyle Tindall, Plaintiff-Appellant, v. POULTNEY HIGH SCHOOL DISTRICT, Rutland Southwest Supervisory Union, Defendants-Appellees, Vermont Department of Education, Defendant. Poultney High School District, Rutland Southwest Supervisory Union, Counter-Claimants, v. Dianne Tindall, K C Tindall, Counterclaim-Defendants. Vermont Department of Social and Rehabilitation Services, Movant.
• Court: U.S. Court of Appeals — Second Circuit

414 F.3d 281

K C TINDALL, in the matter of appeal of Vermont Special Education Due Process Case No. 99-12 K.T., parent and next friend of Kyle Tindall, Plaintiff, Dianne Tindall, in the matter of appeal of Vermont Special Education Due Process Case No. 99-12 K.T., parent and next friend of Kyle Tindall, Plaintiff-Appellant, v. POULTNEY HIGH SCHOOL DISTRICT, Rutland Southwest Supervisory Union, Defendants-Appellees, Vermont Department of Education, Defendant.

Poultney High School District, Rutland Southwest Supervisory Union, Counter-Claimants, v. Dianne Tindall, K C Tindall, Counterclaim-Defendants.

Vermont Department of Social and Rehabilitation Services, Movant.

Docket No. 03-7650.

United States Court of Appeals, Second Circuit.

Argued: February 17, 2005.

Decided: July 5, 2005.

Dianne Tindall, pro se, Middlebury, VT, for herself and her son, Kyle Tindall.

Patti R. Page, Stitzel, Page & Fletcher, P.C., Burlington, VT, for Defendants-Appellees.

Before: OAKES, KEARSE, and SACK, Circuit Judges.

Kearse, Circuit Judge, concurs in part and dissents in part in a separate opinion.

BACKGROUND

SACK, Circuit Judge.

In September 2000, K.C. Tindall and Dianne Tindall, parents of Kyle Tindall, a minor, brought an action against the defendants under the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and 42 U.S.C. § 1983. In April 2001, following the dismissal by the district court (Jerome J. Niedermeier, Magistrate Judge¹) of two counts of the original complaint, the plaintiffs filed a second amended complaint containing ten counts, including several claims brought on behalf of Kyle. Counts I and IV were dismissed with prejudice by stipulation in November 2001. After Counts IX and X were voluntarily withdrawn by the plaintiffs, the district court, in an opinion dated January 15, 2002, on the defendant's motion for judgment on the pleadings — which the court converted to a motion for summary judgment — dismissed Counts VI through X of the amended complaint. Among those counts, Count VI (invasion of privacy) and Count VII (misrepresentation) were claims on Kyle's behalf.

Two weeks later, the Tindalls' counsel moved to withdraw. The court granted the motion, ordering the Tindalls to find other counsel or appear pro se. Ms. Tindall entered an appearance pro se and also filed a motion for reconsideration of the order allowing her counsel to withdraw, as well as several motions requesting more time to find new counsel. Noting that Ms. Tindall could not represent her son Kyle pro se, the court granted an extension until August 15, 2002, to retain or request appointment of counsel for Kyle.

In an opinion dated September 24, 2002, the district court dismissed, without prejudice, Counts II and V, which had been brought on behalf of Kyle, on the basis that Ms. Tindall could not represent her son pro se. The court noted that Ms. Tindall had been unable to retain a lawyer to represent Kyle despite being granted extensions of time to do so. The court pointed out that although Ms. Tindall asserted that her inability to retain counsel resulted from financial constraints, a court may award attorneys' fees to parents of a disabled child if he or she prevails under IDEA. In addition, the court found that Kyle failed to meet the standard for the appointment of counsel at public expense. Subsequently, in an opinion dated May 19, 2003, the court also granted summary judgment to the defendants, and denied summary judgment to the plaintiff, as to Count III, which alleged that Ms. Tindall had been discriminated against based on her disability, resulting in injury to Kyle. The court found that the record did not show that Ms. Tindall had suffered any harm, and further noted that the claim of injury as to Kyle was the same as the one alleged in previously dismissed counts of the original complaint. Ms. Tindall appeals, representing herself and purporting to represent her son Kyle.

DISCUSSION

We review a district court's grant of a motion to dismiss or for summary judgment de novo, accepting the plaintiff's allegations as true when considering the motion to dismiss, and drawing all factual inferences in favor of the non-moving party for purposes of summary judgment, see Sharpe v. Conole, 386 F.3d 482, 483-84 (2d Cir.2004), or, when cross-motions for summary judgment are filed, "against the party whose motion is under consideration," Boy Scouts of Am. v. Wyman, 335 F.3d 80, 88 (2d Cir.2003) (internal quotation marks and citation omitted), cert. denied, 541 U.S. 903, 124 S.Ct. 1602, 158 L.Ed.2d 244 (2004). "Summary judgment is appropriate only when `there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'" Mackey ex rel. Thomas M. v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 (2d Cir.2004) (quoting Fed.R.Civ.P. 56(c)).

Upon review of the record and the applicable law, we affirm the district court's grant of summary judgment as to Count VIII, alleging "defamation of character," brought by Ms. Tindall on her own behalf. The court correctly concluded that this claim, which accrued in 1997 when the alleged defamatory statements were made, was barred by the applicable three-year statute of limitations. See Vt. Stat. Ann. tit. 12, § 512(3). We also affirm the district court's grant of summary judgment as to the claims under Count III pertaining to Ms. Tindall, because the evidence she proffered does not support her claim that she was harmed in this way. Furthermore, because Counts IX and X were voluntarily withdrawn by the plaintiffs and Counts I and IV were dismissed by stipulation, they are not before us.

As to the counts brought on behalf of Kyle Tindall that have been dismissed, namely Counts II, V, VI, VII and part of Count III, we defer our decision for the limited purpose of permitting counsel to be retained to represent him before us. "The choice to appear pro se is not a true choice for minors who under state law, see Fed.R.Civ.P. 17(b), cannot determine their own legal actions." Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.1990).² And although "[l]itigants in federal court have a statutory right to choose to act as their own counsel," Machadio v. Apfel, 276 F.3d 103, 106 (2d Cir.2002) (citing 28 U.S.C. § 1654), "an individual who is not licensed as an attorney `may not appear on another person's behalf in the other's cause,'" id. (quoting Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir.1998)). It is thus a well-established general rule in this Circuit that a parent not admitted to the bar cannot bring an action pro se in federal court on behalf of his or her child. See Cheung, 906 F.2d at 61 (a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child in federal court); Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123, 124-25 (2d Cir.1998) (per curiam) (same), cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 363 (1999); see also Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 201 (2d Cir.2002) (noting that "[i]n this Circuit, a non-attorney parent is precluded from representing his or her child in federal court" and that the district court should have ordered pro se plaintiff who prevailed in district court when represented by a parent, and was represented by counsel on appeal, to obtain counsel in the district court, although finding no reversible error under the circumstances of the case, see infra, footnote 4). The rule is primarily based on protection of the legal interests of the minor and the impropriety of a person who is not a member of the bar representing another person in court proceedings. See Cheung, 906 F.2d at 61 ("[I]t is not in the interests of minors or incompetents that they be represented by non-attorneys. Where they have claims that require adjudication, they are entitled to trained legal assistance so their rights may be fully protected.")

The broad language of our decisions, as discussed above, and the reasons for it suggest that the principle ordinarily must hold in our Court on appeal. Cf. Lewis v. Lenc-Smith Mfg. Co., 784 F.2d 829, 830-31 (7th Cir.1986) (per curiam) (extending the rule that "an individual may appear in the federal courts only pro se or through counsel" to the appellate court — even though "the Federal Rules of Appellate Procedure and [the Seventh] Circuit's Rules are silent as to whether non-lawyers may represent anyone other than themselves" — and striking the appearance and brief of a non-lawyer purporting to represent the appellant); Georgiades v. Martin-Trigona, 729 F.2d 831, 834 (D.C.Cir.1984) (concluding that defendant-appellant's son, who was "not a member of the bar of any court," was "not qualified to appear in the District Court or in [the Court of Appeals] as counsel for others").³

We pause to note, however, that the rule is not quite as absolute as it may seem. See Machadio, 276 F.3d at 107 ("[A] non-attorney parent may bring an action on behalf of his or her child without representation by an attorney," "[w]here a district court, after appropriate inquiry into the particular circumstances of the matter at hand, determines that a non-attorney parent who brings a[] [Supplemental Security Income] appeal [from a decision by an administrative law judge] on behalf [of] his or her children has a sufficient interest in the case and meets basic standards of competence."); Murphy, 297 F.3d at 201 (declining to vacate, on appeal in which minor was represented by counsel, the district court's judgment in favor of a minor represented there by his non-lawyer parents).⁴ We further note that some of the same factors that were present in Machadio — such as the intertwining of the interests of the parent and the...