United States District Court, D. Delaware
WILLIAM H. DEVARY, JR., on behalf of B.D., a minor child, Plaintiff,
DELAWARE DEPARMENT OF EDUCATION, Defendant.
plaintiff, William H. DeVary, Jr. ("DeVary"), on
behalf of B.D., a minor child, appears pro se and
was granted permission to proceed in forma pauperis.
(D.I. 4.) DeVary filed this lawsuit on December 11, 2017.
(D.I. 2.) The court proceeds to review and screen the
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).
is the father of B.D., who lives in either Pennsylvania or
Maryland (it is not clear from the allegations), and who
attended Gateway. B.D. was transferring schools with a
protection from abuse order against Jessica Gregg
("Gregg"). DeVary alleges that the executive
director of Gateway refused his request to have B.D.
interviewed by a school counselor. DeVary alleges that he was
denied the legal right to remove his son from the emotionally
abusive situation caused by Gregg. He alleges gross negligence
and emotional abuse and seeks $500 million in compensatory
STANDARD OF REVIEW
federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C.
§ 1915(e)(2)(B) if "the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief." Ball v. Famiglio, 726
F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C.
§ 1915(e)(2) (in forma pauperis actions). The
court must accept all factual allegations in a complaint as
true and take them in the light most favorable to a pro
se plaintiff. Phillips v. County of Allegheny,
515 F.3d 224, 229 (3d Cir. 2008); Erickson v.
Pardus, 551 U.S. 89, 93 (2007). Because DeVary proceeds
pro se, his pleading is liberally construed and his
complaint, "however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. at 94
action is frivolous if it "lacks an arguable basis
either in law or in fact." Neitzke v. Williams,
490 U.S. 319, 325 (1989). Under 28 U.S.C. §
1915(e)(2)(B)(i), a court may dismiss a complaint as
frivolous if it is "based on an indisputably meritless
legal theory" or a "clearly baseless" or
"fantastic or delusional" factual scenario.
Neitzke, 490 at 327-28; Wilson v. Rackmill,
878 F.2d 772, 774 (3d Cir. 1989).
legal standard for dismissing a complaint for failure to
state a claim pursuant to § 1915(e)(2)(B)(ii) is
identical to the legal standard used when ruling on Rule
12(b)(6) motions. Tourscher v. McCullough, 184 F.3d
236, 240 (3d Cir. 1999) (applying Fed.R.Civ.P. 12(b)(6)
standard to dismissal for failure to state a claim under
§ 1915(e)(2)(B)). However, before dismissing a complaint
or claims for failure to state a claim upon which relief may
be granted pursuant to the screening provisions of 28 U.S.C.
§ 1915, the court must grant DeVary leave to amend his
complaint unless amendment would be inequitable or futile.
See Grayson v. Mayview State Hosp., 293 F.3d 103,
114 (3d Cir. 2002).
well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662
(2009); BellAtl Corp. v. Twombly, 550 U.S. 544
(2007). A plaintiff must plead facts sufficient to show that
a claim has substantive plausibility. See Johnson v. City
of Shelby, ___U.S. ___, 135 S.Ct. 346, 347 (2014). A
complaint may not dismissed, however, for imperfect
statements of the legal theory supporting the claim asserted.
See Id. at 346.
the pleading regime established by Twombly and
Iqbal, a court reviewing the sufficiency of a
complaint must take three steps: (1) take note of the
elements the plaintiff must plead to state a claim; (2)
identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth; and
(3) when there are well-pleaded factual allegations, the
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.
Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d
Cir. 2016) (internal citations and quotations omitted).
Elements are sufficiently alleged when the facts in the
complaint "show" that the plaintiff is entitled to
relief. Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P.
8(a)(2)). Deciding whether a claim is plausible will be a
"context-specific task that requires the reviewing court
to draw on its judicial experience and common sense."
the court notes that in the federal courts of the Third
Circuit, parents cannot represent their children pro
se. Indeed, it is well-established that the right to
proceed pro se in federal court does not give
non-lawyer parents the right to represent their children in
proceedings before a federal court. See J.R. v. Lehigh
Cnty., 534 Fed.Appx. 104, 108 (3d Cir. 2013)
(unpublished); but see Winkelman ex rel Winkelman v.
Parma CitySch. Dist., 550 U.S. 516 (2007) (because
parents enjoy rights under the IDEA, they are entitled to
prosecute IDEA claims on their own behalf). It appears that
DeVary intends to assert claims on behalf of his son.
Although litigants can act as their own counsel under 28
U.S.C. § 1654, the statute does not authorize
non-attorneys to represent the interests of others in
litigation such as a non-attorney parent representing a
child. See Osei -Afriyie v. Medical College of Pa.,
937 F.2d 876, 882 (3d Cir. 1991).
courts have an independent obligation to address issues of
subject matter jurisdiction sua sponte and may do so
at any stage of the litigation. See, e.g., U.S. Express
Lines Ltd. v. Higgins, 281 F.3d 383, 388-89 (3d Cir.
2002). DeVary's civil cover sheet rests jurisdiction on
the basis of a federal question and a United States
government defendant. (D.I. 2-1.) However, the only defendant
is the Delaware Department of Education which is not a United
States government defendant and, therefore, the United States
government as a defendant does not provide a basis for
to the issue of a federal question, even when liberally
construing the complaint as the court must, it is unclear
under what theory DeVary proceeds. The civil cover sheet
describes the case as "emotional abuse; child
neglect." (D.I. 2-1.) Notably, the allegations do not
remotely suggest a claim arising under federal law. To the
extent DeVary alleges negligence and emotional abuse, neither
theory provides a basis for federal question ...