United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES, UNITED STATES DISTRICT JUDGE
matter is before the court on the following: Plaintiffs'
motions for preliminary injunction (Doc. 2), for temporary
restraining order (Doc. 13), and for appointment of counsel
(Doc. 30); and on Defendants' motions to dismiss (Docs.
17, 27.) For the reasons stated herein, Plaintiffs'
motions are DENIED and Defendants' motions to dismiss are
Christopher Ratcliff (hereinafter “Plaintiff”)
filed a pro se complaint seeking an injunction requiring
Defendants to allow his minor son, K.R., to participate in
Fall 2018 extracurricular activities at Salina South High
School. The complaint asserts that K.R. has a mental
disability covered under the Americans with Disabilities Act
(ADA), that Salina South “wrote a plan
504” to meet the needs of the disability, and
that the school's failure to comply with the plan
affected K.R.'s academic performance in one or more
classes, causing him to be declared ineligible to particulate
in extracurricular activities for the Fall 2018 semester.
(Doc. 1). The complaint alleges that Plaintiff filed an
administrative complaint with the United States Department of
Education's Office for Civil Rights, that the process is
ongoing, and that K.R. will suffer irreparable harm if he is
not allowed to participate in extracurricular activities
pending completion of that process. (Id. at 5.)
USD 305 filed a motion to dismiss on September 20, 2018,
arguing in part that Plaintiff could not represent K.R.
without an attorney, and also that exhaustion of
administrative remedies was required under the Individuals
with Disabilities Education Act (IDEA), 20 U.S.C. §
1400, before Plaintiff could seek relief in court. (Doc. 18.)
At a hearing on September 21, 2018, the court heard from the
parties. Plaintiff voiced his belief that Salina South failed
to comply with the terms of a 504 Plan by not
“chunking” K.R.'s assignments (i.e., breaking
them into small portions) and by not extending or eliminating
homework deadlines. At the hearing, the court informed
Plaintiff that because he is not an attorney, he cannot
represent his son in this lawsuit. Rather than dismiss the
case at that time, however, the court indicated it would wait
at least until the response deadline on the motion to
dismiss, to give Plaintiff time to obtain an attorney.
subsequently filed a motion for temporary restraining order,
his third such motion in this proceeding. (Doc. 25.) The
court denied the motion on October 10, 2018, again pointing
out that because Plaintiff is not a lawyer he is precluded
from acting as K.R.'s legal representative. (Doc. 29 at
2.) The court went on to consider whether it should appoint
counsel for Plaintiffs. (Id. at 2-4.) In considering
the relevant factors, the court noted Plaintiff said he
consulted with several attorneys about representation, but
did not name the attorneys, and that as far as the merits of
the case are concerned, the claim “may be subject to
the IDEA's exhaustion requirement.” (Id.
at 3.) The court declined to appoint counsel. (Id.
Motion for appointment of counsel (Doc. 30.)
now moves for appointment of counsel. His motion lists the
names or affiliations of eight lawyers he consulted and
otherwise confirms that he made diligent efforts to obtain
representation. (Doc. 30.)
court noted in its prior order, four factors are considered
when the court decides whether to appoint counsel for an
individual in a civil case: (1) plaintiff's ability to
afford counsel, (2) plaintiff's diligence in searching
for counsel, (3) the merits of plaintiff's case, and (4)
plaintiff's capacity to prepare and present the case
without the aid of counsel. Lenhardt v. Dreamliner
Motel, No. 18-4125-SAC-KGG, 2018 WL 4698618, *2 (D. Kan.
Oct. 1, 2018) (citations omitted). See also Thomas v.
Brockbank, 195 Fed.Appx. 804, 807 (10th Cir. 2006).
There are several factors favoring appointment of counsel
here, but they are ultimately outweighed by consideration of
an obstacle to Plaintiff's claim, namely the likelihood
that exhaustion of administrative remedies is required.
Supreme Court case law indicates that Plaintiff's claim
may be subject to the IDEA's administrative exhaustion
requirement. See Fry v. Napoleon Comm. Sch., 137
S.Ct. 743, 749-50 (2017) (“a plaintiff bringing suit
under the ADA, the Rehabilitation Act, or similar laws must
in certain circumstances - that is, when ‘seeking
relief that is also available under' the IDEA - first
exhaust the IDEA's administrative procedures.”) The
relief Plaintiff seeks is predicated upon allegations that
K.R. was denied accommodations in the assignment and grading
of homework that were appropriate in light of his disability.
While the Rehabilitation Act and ADA promise
non-discriminatory access to public institutions generally,
the IDEA “guarantees individually tailored educational
services” to children in school to meet his or her
“unique needs.” Id. This indicates the
gravamen of Plaintiff's complaint as noted above is for
denial of a “free appropriate public education”
under the IDEA; it concerns conduct applicable only to a
student at a school, relating to individual educational
needs, and not to other persons in other settings. See
Id. at 756-57 (a claim by a student with a learning
disability “for failing to provide remedial tutoring in
mathematics … might be cast as one for
disability-based discrimination, grounded on the school's
refusal to make a reasonable accommodation … [b]ut can
anyone imagine the student making the same claim against a
public theater or library?”) Given the likelihood of an
exhaustion requirement in this case, the court concludes the
motion to appoint counsel should be denied.
Motions to Dismiss (Docs. 17, 27.)
both assert that Plaintiff is precluded from representing
K.R. in this action. (Doc. 18 at 2; Doc. 27 at 5.) The court
agrees. In Heffington v. Derby Unified Sch. Dist.
260, No. 11-2276-CM, 2011 WL 5149257 (D. Kan. Oct. 28,
2011), Judge Murguia noted that neither 28 U.S.C. § 1654
nor Federal Rule of Civil Procedure 17 allows a pro se
non-lawyer to represent a minor, and thus a non-attorney
parent bringing an action on behalf of a minor child must be
represented by counsel. Id. (citing Meeker v.
Kercher, 782 F.2d 153, 154 (10th Cir. 1986)). This rule
protects the legal interests of minors by preventing
non-licensed persons from acting as their attorneys.
Id. Judge Murguia concluded that the minor's
claims in that case should be dismissed without prejudice, as
the non-attorney parent could not act as the minor's
legal representative. Id. That rule has been
consistently applied in this district. See Donahue v.
Kansas Bd. of Educ., No. 18-2012, 2018 WL 3055841, *1
(D. Kan. June 20, 2018); Zhu v. Countrywide Realty
Co., 160 F.Supp.2d 1210, 1225-26 (D. Kan. 2001);
Oltremari by McDaniel v. Kansas Soc. & Rehab.
Svc., 871 F.Supp. 1331, 1332 (D. Kan. 1994). The same
rule applies here. Plaintiff cannot act as his son's
attorney and cannot maintain the suit on K.R.'s behalf
without an attorney. K.R.'s claim will therefore be
dismissed without prejudice.
does not expressly identify any claim that he is asserting on
his own behalf in this action. As noted in
Heffington, a plaintiff “must assert his own
legal rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third
parties.” Heffington, 2011 WL 5149257, * 2.
Nor does the complaint identify any such claim. The
allegations in the complaint only assert K.R.'s rights
under the ADA and Rehabilitation Act. Defendants are
accordingly entitled to dismissal of all claims for the
reasons indicated above.
IS THEREFORE ORDERED this 16th day of November,
2018, that Plaintiff's motion for appointment of counsel
(Doc. 30) is DENIED. The motions to dismiss of Defendant USD
305 (Doc. 17) and Defendant Kansas State High School
Activities Association (Doc. 27) are GRANTED. The complaint
is hereby dismissed without prejudice. Plaintiffs'