United States District Court, D. New Jersey
October 22, 2014
ERVIN MEARS, JR. INDIVIDUALLY AND ON BEHALF OF MINOR CHILD M.M., Plaintiffs,
BOARD OF EDUCATION OF THE STERLING REGIONAL HIGH SCHOOL DISTRICT, et al., Defendants.
ERVIN MEARS, JR. LAWNSIDE, NJ, Pro se plaintiff.
BRETT E. J. GORMAN, PARKER McCAY PA, MT. LAUREL, NJ, Attorney for defendants.
NOEL L. HILLMAN, District Judge.
Before the Court is plaintiffs' motion for leave to file an amended complaint in this matter concerning a child's termination from a high school track team. In the Court's prior Opinion, the Court dismissed all of plaintiffs' claims with prejudice, except for their First Amendment claim and Title VI claim against the defendant school board. The Court dismissed those claims without prejudice and granted plaintiffs thirty days to file a motion for leave to file an amended complaint. Plaintiffs filed their motion for leave to amend, and defendants have opposed it, arguing that plaintiffs' proposed amended complaint re-pleads claims that were dismissed with prejudice, and it otherwise fails to state any valid claims. Prior to addressing the merits of plaintiffs' motion, however, the Court must address whether pro se, non-attorney, Ervin Mears, Jr. has standing to pursue the claims of his son, M.M.
Third Circuit precedent is clear that a non-lawyer appearing pro se is not entitled to play the role of attorney for his child in federal court. Osei-Afriyie v. Medical College of Pennsylvania , 937 F.2d 876, 882 (3d Cir. 1991); Woodruff ex rel. B.W. v. Hamilton Tp. Public Schools , 2007 WL 4556968, *3 (D.N.J. 2007) (citing cases) (declining to allow parents to represent their minor son on his claims for violations of the Rehabilitation Act and ADA, and explaining that the proposition that a parent cannot represent a child has been applied in cases involving civil rights and constitutional violation claims); see also Ciarrocchi v. Clearview Regional High School Dist., 2010 WL 2629050, 2-3 (D.N.J. 2010) (dismissing claims the parent, appearing pro se, brought on behalf of his son, but allowing the parent to file an amended complaint advancing his own claims). Consequently, Mr. Mears does not have standing to prosecute any of his son's claims.
The Court will therefore deny plaintiffs' motion for leave to file an amended complaint, and provide Mr. Mears with two options going forward. One option is that Mr. Mears hire an attorney for his son, or apply for pro bono counsel,  and the attorney may file a motion for leave to file an amended complaint on M.M.'s behalf. In the alternative, Mr. Mears may continue appearing pro se, but he must file a motion for leave to file an amended complaint advancing only his own claims, if he legitimately has any and can do so non-frivolously. Mr. Mears shall have thirty days to complete one of these options. If he fails to do so, the case will be closed. An appropriate Order will be entered.