United States District Court, D. Delaware
WILLIAM H. DEVARY, JR., on behalf of B.D., a minor child, Plaintiff,
JESSICA NICOLE GREGG, 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. He alleges that for four years the
defendant, Jessica Gregg ("Gregg"), lied,
controlled, and withheld B.D. from him and she forced B.D. to
feel fatherless and lie to DeVary about where he was living.
DeVary alleges he was slandered by Gregg who told others that
he was dead, a beater, and a heroin user. He alleges there
was no co-parenting by Gregg; no pictures, holidays or
information about B.D.; and long times between communication
and visits. DeVary alleges that Gregg moved B.D. to
Pennsylvania and Maryland without his knowledge. He alleges
that he was arrested and kept away by Gregg's lies. Gregg
has indicated that she and B.D. are in counseling over
alleges a permanent misdemeanor record, emotional abuse,
emotional distress and depression, and slander perceived by
others. The civil cover sheet describes the cause of action
as endangering the welfare of a child, severe emotional
abuse, and defamation of character. It also refers to related
cases, #CS 17-03076 and 17-35237. DeVary seeks $500 million
in compensatory damages.
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 City Sch. 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 the
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. Zambelli
Fireworks Mfg. Co., Inc. v. Wood,592 F.3d 412, 418 (3d
Cir. 2010) ("Federal courts are courts of limited
jurisdiction, and when there is a question as to our
authority to hear a dispute, 'it is incumbent upon the
courts to resolve such doubts, one way or the other, before
proceeding to a disposition on the merits.'").
"Domestic relations is a field peculiarly suited to
state regulation and control, and peculiarly unsuited to