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Mouser v. State

United States District Court, S.D. Indiana, Indianapolis Division

December 28, 2017

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,
v.
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

          HON. WILLIAM T. LAWRENCE, JUDGE

         I. Filing Fee

         The 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).

         II. Screening Standard

         District 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 standards,

[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).

         III. The Complaint

         A. Dismissal of Minor Children

         The 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.”)).

         Ms. 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.

         B. Statutory Claims

         Ms. 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. §§ 12111-213.

         The statutory claims against the individual ...


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