United States District Court, D. Delaware
WILLIAM H. DEVARY, JR., on behalf of B.D., a minor child, Plaintiff,
DELAWARE STATE POLICE TROOP 6, 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 he obtain a protection
from abuse order ("PFA") on B.D.'s behalf from
the State of Delaware where DeVary has joint legal custody
rights to B.D. DeVary alleges that Jessica Gregg
("Gregg") "put a no contact order on him in
Maryland which kept B.D. in severe child abuse. DeVary
alleges a "failure to abide by Delaware and embrace the
PFA. He claims emotional abuse and emotional distress and
relief DeVary seeks $500 million in compensatory damages and
the enactment of a law "that when a child abuse
complaint is filed in one state,  it gets entered into a
national database, which then prevents that person to file
any motion to retain that child in abuse." (D.I. 2 at
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).
construing the complaint, DeVary seems to allege that he was
injured by the Delaware State Police when a PFA was not
enforced. On the civil cover sheet DeVary states that he
raises a federal question. The claims against the State
Police, however, are barred by reason of the Eleventh
Amendment. "Absent a state's consent, the Eleventh
Amendment bars a civil rights suit in federal court that
names the state as a defendant." Laskaris v.
Thornburgh, 661 F.2d23, 25(3dCir. 1981) (citing
Alabama v. Pugh,438 U.S. 781 (1978)). The State of
Delaware has not waived its sovereign immunity under the
Eleventh Amendment. See Brooks-McCollum v. Delaware,213 Fed.Appx. 92, 94 (3d Cir. Jan. 11, 2007). In addition,
the Eleventh Amendment limits federal judicial power to
entertain lawsuits ...