Crozier v. Westside Cmty. Sch. Dist.

WARREN D. CROZIER, and PAULA M. CROZIER, Parents ofMinor Child A.C., Plaintiffs, v. WESTSIDE COMMUNITY SCHOOL DISTRICT, et al., Defendants.

8:18CV541

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

January 17, 2019

MEMORANDUM AND ORDER

Plaintiffs, Warren D. Crozier, and Paula M. Crozier, Parents of Minor Child A.C., filed this pro se case on November 16, 2018, and have been granted leave to proceed in forma pauperis. The matter is now before the court on Plaintiffs' motion for appointment of counsel (Filing 3).

I. BACKGROUND

Plaintiffs' Complaint is nearly identical to a complaint they filed in this court on September 17, 2018, in Case No. 8:18CV438. That case was dismissed without prejudice on October 25, 2018, when the court determined on initial review of the complaint that Plaintiffs lacked standing to bring individual § 1983 claims based solely upon alleged violations of their child's constitutional rights, and that they were not permitted to sue as the child's representatives while proceeding pro se. The court advised Plaintiffs that if they were unable to find an attorney who was willing to take the case on a contingent-fee basis, the action could be re-filed and a request could be made for court-appointed counsel. Plaintiffs were further advised that the court had made no determination regarding the merits of their minor child's claims, and that a re-filed action would not necessarily be permitted to proceed.

II. SUMMARY OF COMPLAINT

Plaintiffs bring this action on behalf of their minor child ("A.C."), who was enrolled as a student at Westside Middle School in Omaha, Nebraska, during the 2016-2017 school year. Plaintiffs claim Defendants¹ violated their child's First Amendment right to free speech and denied her the equal protection of the laws. Pursuant to 42 U.S.C. § 1983, they seek to recover compensatory and punitive damages, and also request declaratory and injunctive relief.

Plaintiffs claim A.C.'s eighth grade English teacher, Elizabeth Meyers, "violated A.C.'s Constitutional 1st Amendment right to free speech by demanding A.C. stop speaking" during a class discussion (Filing 1, p. 5). Material allegations of fact regarding this claim include:

13. On Monday 10/3/16, in 4th period, Meyers presented a video news story on "Athletes kneeling during the National Anthem." Meyers discussed how kneeling was an act of protest in support of the Black Lives Matter Movement, against those in law enforcement. Meyers also stated that white people had said, "They (athletes) should be hanged by the flagpole." Meyers assigned students to watch this video and comment on their views and why or why not athletes were kneeling.

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15. Upon finishing the video, Meyers called on A.C. to share her ideas. A.C. declined and asked Meyers to call on someone else. Meyers insisted A.C. answer.16. A.C., a 13 year old at the time, formulating ideas and questions, shared that the kneeling was disrespectful to law enforcement and military, and questioned that this violence could have stemmed from music lyrics that said such things as "F-the Police, and the use of the N-word." (as the racial slur, but note that A.C. did NOT use the curse words, but as the 'F-word' and 'N-word' respectively). Meyers demanded where A.C. had gotten this information, and A.C. answered "from the media."

17. A.C. then to explain further, shared an example of her previous school year during 7th grade lunchtime where she overheard two students, one white and one black, where the white student asked why he couldn't say the N-word if the black student could. At this point Meyers interrupted A.C. and demanded A.C. stop speaking. A.C. stated she wasn't finished and needed to explain further, and Meyers forbade A.C. to finish, ....

18. A.C. would have continued her opinion that the use of the N-word should not be said by anyone, but A.C. was not allowed that opportunity....

(Filing 1, pp. 12-13)

Plaintiffs also claim Meyers "purposefully and willfully retaliated against A.C. and further violated A.C.'s Constitutional 1st and 14th amendment rights" on the following day, when "Meyers was fully aware that A.C. was absent from school at home ill" (Filing 1, p. 6). They claim "Meyers took that opportunity to smear and slander A.C.'s excellent reputation and character to the students in every class period," as she "lied to intentionally defame and label A.C. as a 'racist who says the N-word' thus inflicting emotional and physical distress, decimating A.C.'s reputation and placing A.C. in direct harm and danger at school, ..." (Filing 1, p. 6).² Material allegations of fact regarding this claim include:

22. On the morning of Tuesday, 10/4/16, A.C. woke up not feeling well and stayed home from school. The Croziers called the school before classes started and reported A.C.'s absence due to illness and fever.

23. At 9:56a.m. on Tuesday 10/4/16, Plaintiff Paula Crozier received an upsetting email from Meyers stating that A.C. had to be "cut off" in yesterday's class because the information A.C. shared took a "dicey turn" when A.C. made statements "generalizing blacks." Meyers stated in the email that the Croziers could speak to Meyers about it after school at parent teacher conferences.

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25. A.C. began receiving texts from students at about noon on Tuesday 10/4/16 with questions about A.C. being suspended for (sic) "What you done" "And I know for a fact what happened in the class", "Your teacher told all the other classes what you said, not what you (sic) anime but what you said" and "I don't think the teacher would lie and tell all the classes something (sic) in true."

26. With these social media texts and messages coming from angry students, although still sick, A.C. insisted on joining her parents at parent teacher conferences to face Meyers and confront Meyers about what Meyers said to classes that day about A.C. Even walking into the school, A.C. was accosted by students with taunts of "A.C.- we heard what you said". These accusations caused A.C. great fear and emotional distress. On 10/4/16 at approximately 5pm, the Plaintiffs sat down with Meyers to discuss Meyers' actions ....

27. ... Meyers admitted to not knowing A.C. well enough to make judgments about A.C., but when confronted by Plaintiff who stated, "It is entirely unfair that you label A.C. a racist!" Meyers rolled her eyes and smugly answered, "I do not believe it to be unfair." ...

(Filing 1, pp. 14-15)

Plaintiffs claim Principal Olsen "violated Plaintiff A.C.'s 14th Amendment rights as equal protection under the law by negligence" (Filing 1, p. 6). They allegeOlsen conducted an investigation and, although admitting to Plaintiffs that Meyers' action were "egregious, wrong, and shouldn't have happened," he denied Plaintiffs' "repeated requests of Meyers to apologize to A.C. and to all the students/classes Meyers, taught," and instead "insisted upon speaking directly to a few students A.C. named as friends who now ostracized and harassed A.C. because of Meyers" (Filing 1, p. 6). "Olsen moved A.C. to a different English class upon the insistence of [Plaintiffs]," but Plaintiffs complain that he and Assistant Superintendent Schonewise have not made changes to Meyers' curriculum or taken disciplinary action against her (Filing 1, pp. 7-8). Plaintiffs subsequently removed A.C. from Westside Middle School, and it appears she now attends high school in a different school district (Filing 1, pp. 25-26). Plaintiffs also complain that Superintendent McCann would not communicate with them and that the Westside Community School District did not act on a tort claim they submitted to the board on September 17, 2017 (Filing1, pp. 8-9).

III. MOTION FOR APPOINTMENT OF COUNSEL

As the court explained in dismissing Plaintiffs' previously filed action, "it is well established that a pro se party may not represent others, even when it is a parent purporting to represent his minor children." Behrens v. GMAC Mortg., LLC, No. 8:13-CV-72, 2013 WL 6118415, at *4 (D. Neb. Nov. 21, 2013) (citing cases), aff'd 566 F. App'x 546 (8th Cir. 2014). Thus, the present action, which is brought solely on behalf of Plaintiffs' minor child, cannot proceed without an attorney to represent Plaintiffs.³

"Indigent civil litigants do not have a constitutional or statutory right to appointed counsel," Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996), but "[t]he court may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1) (emphasis supplied). However, such appointments are rare. See Peterson v. Nadler, 452 F.2d 754, 757 (8th Cir. 1971), abrogated on other grounds by Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296 (1989). "In ruling upon a motion for appointment of counsel, the district court may consider the merits of the claim, the plaintiff's efforts to obtain counsel, and the plaintiff's financial ability to retain an attorney." Hale v. N. Little Rock Hous. Auth., 720 F.2d 996, 998 (8th Cir. 1983).

Plaintiffs have demonstrated their lack of financial resources in being permitted to proceed in forma pauperis. Plaintiffs also represent in their pending motion for appointment of counsel that they contacted 8 attorneys prior to filing the previous lawsuit, and that none were willing to take the case on a contingent fee basis. Since the dismissal of that action, Plaintiffs represent they have contacted 27 additional attorneys in private practice, Nebraska Legal Aid, and Creighton University's legal clinic, but have not been able to find anyone to represent them. The court accepts the truthfulness of these representations, and does not question that Plaintiffs have made a diligent effort to retain counsel. After carefully reviewing the detailed allegations of Plaintiffs' Complaint, however, the court concludes that the constitutional claims asserted are not sufficiently meritorious to warrant the appointment of counsel.⁴

There is no right to counsel in civil cases. Even where, as here, "

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