United States District Court, S.D. Indiana, Indianapolis Division
TRICIA MOUSER in propria persona, L.B.M. minor, Brought by next friend and parent, M.M.M. minor, Brought by next friend and parent, Plaintiffs,
STATE OF INDIANA, CURTIS HILL Chief Justice, Indiana Attorney General, INDIANA DEPARTMENT OF CHILD SERVICES Tipton County Office DCS, THOMAS R. LETT Judge, in his official capacity As Judge of the Tipton County Circuit Court, TIPTON COUNTY CIRCUIT COURT, MELISSA CUNNYNGHAM CASA;GAL, JUSTIN KENT CLOUSER, BRANDON M. RUSH, Defendants.
ENTRY DISCUSSING FILING FEE, DENYING MOTION TO
APPOINT COUNSEL AND DISMISSING COMPLAINT
WILLIAM T. LAWRENCE, JUDGE
plaintiff's request to proceed in forma
pauperis, Dkt. No. 2, is granted. The
assessment of even a partial filing fee is not feasible at
this time. Notwithstanding the foregoing ruling, the
plaintiff owes the filing fee. “All [28 U.S.C.] §
1915 has ever done is excuse pre- payment of the
docket fees; a litigant remains liable for them, and for
other costs, although poverty may make collection
impossible.” Abdul-Wadood v. Nathan, 91 F.3d
1023, 1025 (7th Cir. 1996).
courts have an obligation under 28 U.S.C. §
1915(e)(2)(B) to screen complaints before service on the
defendants, and must dismiss the complaint if it is frivolous
or malicious, fails to state a claim for relief, or seeks
monetary relief against a defendant who is immune from such
relief. Dismissal under the in forma pauperis
statute is an exercise of the Court's discretion.
Denton v. Hernandez, 504 U.S. 25, 34 (1992). In
determining whether the complaint states a claim, the Court
applies the same standard as when addressing a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6).
See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th
Cir. 2006). To survive dismissal under federal pleading
[the] complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, a
“plaintiff must do better than putting a few words on
paper that, in the hands of an imaginative reader,
might suggest that something has happened to her
that might be redressed by the law.” Swanson v.
Citibank, N.A., 614 F.3d 400, 403 (7th Cir.2010)
(emphasis in original).
Dismissal of Minor Children
plaintiff Tricia Mouser filed this action. She has also named
as plaintiffs her two minor children. An individual generally
may appear in federal court only pro se or through
counsel. 28 U.S.C. § 1654; Lewis v. Lenc-Smith Mfg.
Co., 784 F.2d 829, 830 (7th Cir. 1986). “One
consequence of the normal rule is that a next friend may not,
without the assistance of counsel, bring suit on behalf of a
minor party.” Elustra v. Mineo, 595 F.3d 699,
705 (7th Cir. 2010) (finding no exception to this general
rule recognized for a lawsuit based on 42 U.S.C. § 1983
or general state tort law) (citing Cheung v. Youth
Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d
Cir. 1990) (“[A] non-attorney parent must be
represented by counsel in bringing an action on behalf of his
or her child.”)); 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.”)).
Mouser is not an attorney and does not have authority to
appear as her children's legal representative in this
action. As a guardian of the minor children, Ms. Mouser may
sue on their behalf, but he may not do so without counsel.
Amaya v. Pitner, 130 Fed.Appx. 25 (7th Cir. 2005)
(citing Navin v. Park Ridge School District 64, 270
F.3d 1147, 1148 (7th Cir. 2001)). This rule is designed to
protect the interests of the minor party; in addition, it
“jealously guards the judiciary's authority to
govern those who practice in its courtrooms.” Myers
v. Loudoun County Pub. Schs., 418 F.3d 395, 400 (4th
Cir. 2005). Accordingly, Ms. Mouser's children are
dismissed from this action.
Mouser has sued the State of Indiana, Attorney General Curtis
Hill, the Indiana Department of Child Services, Judge Thomas
R. Lett, Tipton County Circuit Court, Guardian ad litem
Melissa Cunnyngham, attorney Justin Kent Clouer and attorney
Brandon M. Rush claiming violations of the Rehabilitation
Act, 29 U.S.C. §§ 794-94e, the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§
statutory claims against the individual ...