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Wenger v. Canastota Central School District

United States Court of Appeals, Second Circuit
Jun 12, 1998
146 F.3d 123 (2d Cir. 1998)

Summary

holding that appellate court has an obligation sua sponte to inquire into whether pro se parent had authority to litigate claims on behalf of his minor children

Summary of this case from Myers v. Loudoun County Public Schools

Opinion

No. 97-7616

Argued: May 26, 1998

Decided: June 12, 1998

Appeal from a judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge) granting summary judgment in favor of the defendants in a suit prosecuted by a pro se plaintiff on behalf of his son.

Affirmed in part and vacated and remanded in part.

Walter S. J. Wenger, pro se, Canastota, NY, Argued for Plaintiff-Appellant.

S. Paul Battaglia, Bond, Schoeneck King, Syracuse, NY, Argued for Defendants-Appellees Canastota Central School District, et al.

Peter H. Schiff, Deputy Solicitor General, for Dennis C. Vacco, Attorney General of the State of New York (Nancy A. Spiegel, Assistant Attorney General, and Lisa LeCours, Assistant Attorney General, of counsel), Albany, NY, Argued for Defendant-Appellee Thomas Sobol.

Before: CALABRESI, Circuit Judge, POLLACK, DRONEY, District Judges.

The Honorable Milton Pollack, United States District Judge for the Southern District of New York, sitting by designation.

The Honorable Christopher F. Droney, United States District Judge for the District of Connecticut, sitting by designation.

Pursuant to 28 U.S.C. § 46(b) and an order of the chief judge of this court certifying a judicial emergency, this case was heard by an emergency panel consisting of one judge of this court and two judges of the United States District Court sitting by designation.


Walter Wenger, pro se, appeals from a judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge) granting summary judgment in favor of the defendants in this suit under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400, et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Wenger sued on behalf of his son, Steven Wenger, alleging that the defendants had failed to provide Steven with appropriate special education services, in violation of the IDEA, and had discriminated against Steven on the basis of his disability in violation of Section 504 of the Rehabilitation Act. In addition, Wenger claimed that the defendants had violated his own rights as a parent under the IDEA by failing properly to advise him of those rights, by not including him fully in the development of Steven's educational plan, and by not allowing him a meaningful voice in determining the nature and extent of the services Steven would receive.

With respect to the claims that Wenger has brought on behalf of his son, we begin by noting that Wenger appeared pro se both in the district court and on appeal. We have held, however, that in federal court "a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child." Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990); see also Iannaccone v. Law, ___ F.3d ___, No. 97-6045, 1998 WL 202337, at *5 (2d Cir. Apr. 27, 1998) ("[B]ecause pro se means to appear for one's self, a person may not appear on another person's behalf in the other's cause."). In the case before us, the district court acknowledged our holding in Cheung, but, apparently because the defendants had not raised the issue, nevertheless allowed Wenger to continue to appear without counsel on behalf of his son. This was error. The court has a duty to enforce the Cheung rule sua sponte, for "[t]he infant is always the ward of every court wherein his rights or property are brought into jeopardy, and is entitled to the most jealous care that no injustice be done to him." Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (internal quotation marks and citation omitted) (alteration in original). The Cheung rule is designed to protect the legal interests of children, and as we have stated, "it is not in the interests of minors or incompetents that they be represented by non-attorneys. Where they have claims that require adjudication, they are entitled to trained legal assistance so their rights may be fully protected." Cheung, 906 F.2d at 61.

Under Federal Rule of Civil Procedure 17(c), the court may take such action "as it deems proper for the protection of [an] infant or incompetent person," including appointing counsel or a guardian ad litem. See Cheung, 906 F.2d at 61-62. In the case before us, the district court declined to appoint counsel pursuant to the in forma pauperis statute, 28 U.S.C. § 1915. We have held that, in determining whether to appoint counsel for an indigent litigant, a district judge should first determine whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.

Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). In the case before us, the court focused on Walter Wenger's need for an attorney. The court assumed, arguendo, that Mr. Wenger was indigent and that the claim was one of "substance," but concluded that the other factors did not weigh in favor of appointment of counsel. The court noted that Mr. Wenger had been able to investigate adequately the facts up to the point of the motion hearing and determined that he would be reasonably able to continue to do so and to present the case by himself. Accordingly, the court declined to appoint an attorney.

Instead of focusing on Mr. Wenger's need for a lawyer, however, the court should have recognized that Mr. Wenger was not allowed to represent his son, and should have focused on Steven Wenger's need for an attorney. We, therefore, vacate the judgment and remand so that the district court may consider whether Steven Wenger is entitled to the appointment of counsel. We note that, in determining whether appointment of counsel is necessary in a case involving a party who is unable to represent himself because he is a minor or is otherwise incompetent, the court should consider the fact that, without appointment of counsel, the case will not go forward at all. Of course, this does not mean that appointment of counsel is required when it is clear that no substantial claim might be brought on behalf of such a party. But the fact that the party has no means of asserting his rights other than through counsel is certainly a factor that must be considered.

As noted above, Federal Rule of Civil Procedure 17(c) permits the court sua sponte to appoint a guardian ad litem. Should the court find that it cannot decide the appropriateness of appointing counsel on the basis of Mr. Wenger's representation of Steven Wenger, it is free to consider the appointment of such a guardian for the purposes of this litigation.

In the event that the court concludes that counsel should not be appointed for Steven Wenger, and assuming that Mr. Wenger is unable on his own to find an attorney to represent his son, the court should dismiss the claims brought on Steven's behalf without prejudice. See Cheung, 906 F.2d at 62.

Mr. Wenger is, of course, entitled to represent himself on his claims that his own rights as a parent under the IDEA were violated by the defendants' failure to follow appropriate procedures. Like the district court, we have considered all of Mr. Wenger's arguments in this regard and have found them to be without merit. Accordingly, we affirm the dismissal of Mr. Wenger's claims for substantially the reasons stated by that court.


Summaries of

Wenger v. Canastota Central School District

United States Court of Appeals, Second Circuit
Jun 12, 1998
146 F.3d 123 (2d Cir. 1998)

holding that appellate court has an obligation sua sponte to inquire into whether pro se parent had authority to litigate claims on behalf of his minor children

Summary of this case from Myers v. Loudoun County Public Schools

holding that a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child

Summary of this case from Spencer v. Omega Labs., Inc.

holding that a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child

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holding that a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child

Summary of this case from Reyes v. Bd. of Educ. of the Bellmore & Merrick Sch. Dist.

holding that a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child

Summary of this case from S.B. ex rel. J.B. v. Suffolk Cnty.

holding that the court has a duty to enforce this rule sua sponte

Summary of this case from Harper v. New York City Bd. of Educ.

holding that the court has a duty to enforce the rule sua sponte where defendants had not raised the issue

Summary of this case from Fleming v. Grosvenor

holding that a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child

Summary of this case from Allen v. Mattingly

holding that, in an IDEA case: a parent cannot appear pro se on behalf of his child; and the district court erred by failing to enforce that rule, sua sponte

Summary of this case from Michael M. v. Plymoth School District

vacating district court's order dismissing child's claim brought by father pro se where court had not first "consider[ed] whether [the child] is entitled to the appointment of counsel."

Summary of this case from Stevens v. Ashley Mgmt. LLC

raising the issue sua sponte and holding that father could not appear pro se on behalf of his child

Summary of this case from Morgan v. Texas

requiring counsel for claims brought under IDEA by parent on behalf of son but noting that parent can act pro se when bringing claims based on his rights as a parent

Summary of this case from S.N. ex Rel. J.N. v. Pittsford Cent. School

relying on the common-law rule against non-attorney parents representing their children pro se in civil suits

Summary of this case from Maroni v. Pemi-Baker Regional School Dist

reviewing non-attorney's representation of child sua sponte

Summary of this case from Machadio v. Apfel

relying on the general rule that a non-attorney parent must be represented by counsel in bringing an action on behalf of her child

Summary of this case from Collinsgru v. Palmyra Board of Education

In Wenger, which also involved Plaintiff's attempt to litigate claims on behalf of Steven, the Court found that it was up to the district court whether under the predecessor to Rule 17(c)(2), counsel should be appointed for Steven, and directed the court to examine the issue pursuant to the standards for determining whether to appoint counsel to an indigent person under 28 U.S.C. § 1915(e).

Summary of this case from Wenger v. N.Y. State Dep't of Health

In Wenger, the Second Circuit remanded the matter to the district court for that court to determine whether under the predecessor to Rule 17(c)(2) counsel should be appointed for the child, and directed the district court to examine that issue pursuant to the standards utilized for determining whether to appoint counsel to an indigent person under 28 U.S.C. § 1915(e).

Summary of this case from Mills v. Fischer

In Wenger, the court stated that the father was "of course, entitled to represent himself on his claims that his own rights as a parent under the IDEA were violated by the defendants' failure to follow appropriate procedures."

Summary of this case from DeMerchant v. Springfield School District

In Wenger, the court held that while the parent plaintiff was entitled to represent himself on his claims that his own rights as a parent under the IDEA were violated, the parent was not entitled to represent the child.

Summary of this case from C.O. v. Portland Public Schools

In Wenger v. Canastota Central School District, 146 F.3d 123 (2d Cir. 1998) (per curiam), cert. denied, ___ U.S. ___, 119 S.Ct. 1267, 143 L.Ed.2d 363 (1999), the Second Circuit ruled that a court must sua sponte apply the Cheung rule where a parent sued under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., the Rehabilitation Act of 1973 ("Rehabilitative Act"), 29 U.S.C. § 794, and the Due Process Clause of the Fourteenth Amendment, for injunctive relief, compensatory damages, as well as punitive damages.

Summary of this case from Maldonado ex Rel. Maldonado v. Apfel

In Wenger, a father filed a pro se complaint on behalf of his nineteen-year-old son against the school district and others asserting various claims under: (1) the IDEA; (2) the Rehabilitation Act; and (3) the Due Process Clause. The father alleged that the defendants failed to provide appropriate special education services and that they discriminated against the son because of his disability.

Summary of this case from Maldonado ex Rel. Maldonado v. Apfel
Case details for

Wenger v. Canastota Central School District

Case Details

Full title:WALTER S.J. WENGER, PLAINTIFF-APPELLANT, v. CANASTOTA CENTRAL SCHOOL…

Court:United States Court of Appeals, Second Circuit

Date published: Jun 12, 1998

Citations

146 F.3d 123 (2d Cir. 1998)

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