United States District Court, D. Delaware
WILLIAM H. DEVARY, JR., on behalf of B.D., a minor child, Plaintiff,
CECIL COUNTY COURTHOUSE, 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 March 5, 2018. (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 filed a child abuse
complaint against Jessica Gregg ("Gregg"), who
appears to be the mother of B.D. A hearing in Delaware was
set for December 7, 2017. On the same day, Gregg obtained a
no contact order against DeVary in the State of Maryland.
DeVary alleges there was no evidence of abuse to justify
granting the no contact order. Gregg did not appear at the
December 7, 2017 protection from abuse order
("PFA") hearing in Delaware.
was advised that Pennsylvania had legal jurisdiction of B.D.
DeVary appealed the no contact order, and the appeal was
denied. DeVary alleges that the no contact order keeps B.D.
in "severe emotional child abuse." He alleges that
the Maryland order has stopped him from getting B.D. the help
he badly needs.
relief DeVary seeks $500 million in compensatory damages and
the enactment of a law "that once a CPS complaint is
filed, all states know that CPS are looking for them"
and a "law that a no contact order cannot keep a child
in abuse." (D.I. 2 at 7).
STANDARD OF REVIEW
district courts, as courts of limited jurisdiction, have a
continuing duty to satisfy themselves of jurisdiction before
addressing the merits of the case. Packard v. Provident
Nat 7 Bank, 994 F.2d 1039, 1049 (3d Cir. 1993).
In addition, federal courts have the obligation to address
the question of subject matter jurisdiction sua sponte.
Meritcare, Inc. v. St. Paul Mercury Ins. Co., 166 F.3d
214, 217 (3d Cir. 1999), abrogated on other grounds by
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.
546 (2005). If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action. Fed.R.Civ.P. 12(h)(3).
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(3dCir. 1991).
construing the complaint, DeVary seems to allege that he was
injured by the Cecil County Courthouse when the mother of
B.D. sought, and was given, a no contact order against him.
DeVary states diversity of citizenship as a basis for
jurisdiction. (D.I. 2 at ¶ II.)
sole defendant is the Cecil County Courthouse in Elkton,
Maryland. DeVary is a citizen of the State of Delaware. The
complaint indicates that the Cecil County Courthouse is
located in the State of Maryland. Following the reasoning of
the Third Circuit in Benn v. First Judicial Dist, of
Pa., the court concludes that the Cecil County
Courthouse is a state entity. Benn, 426 F.3d 233,
239-40 (3d Cir. 2005) (concluding that Pennsylvania's
First Judicial District is a state entity entitled to
Eleventh Amendment immunity).
well established that a state is not considered a citizen for
purposes of diversity jurisdiction. A suit between a state
and a citizen of another state is not a suit between citizens
of different states for purposes of diversity jurisdiction
and federal courts have no jurisdiction over such matters
unless they "arise[ ] under the Constitution, laws or
treaties of the United States." State Highway Comm
'n of Wyoming v. Utah Constr. Co., 278 U.S. 194, 200
(1929); see also Harris v. Pennsylvania Tpk.
Comm'n, 410 F.2d 1332, 1333 n.1 (3d Cir. 1969)
("Since neither a state nor its alter ego is a citizen
for purposes of diversity jurisdiction, a suit between a
state, or its alter ego, and a citizen of another state is
not a suit between citizens of different states and diversity
jurisdiction does not exist.").
is no diversity between the parties for purposes of federal
jurisdiction. Therefore, the complaint will be ...