United States District Court, W.D. Wisconsin
N.L.D., LONNZO LEE HARPER, and TAMESHIA R. DAVIS, Plaintiffs,
CRESTWOOD ELEMENTARY SCHOOL, Defendant.
OPINION AND ORDER
D. Peterson, District Judge.
Lonnzo Lee Harper and Tameshia R. Davis have filed this
lawsuit on their own behalf and on behalf of their son
N.L.D., alleging that N.L.D. was injured on the playground at
Crestwood Elementary School in Madison. The court has allowed
plaintiffs to proceed in forma pauperis.
plaintiffs are proceeding in forma pauperis, I must
screen the complaint and dismiss any portion that is legally
frivolous, malicious, fails to state a claim upon which
relief may be granted, or asks for money damages from a
defendant who by law cannot be sued for money damages. 28
U.S.C. § 1915. In doing so, I must read plaintiffs'
pro se complaint generously, see Haines v. Kerner,
404 U.S. 519, 521 (1972) (per curiam), and accept their
allegations as true, see Bonte v. U.S Bank, N.A.,
624 F.3d 461, 463 (7th Cir. 2010).
filed a complaint signed only by himself. Dkt. 1. After the
clerk of court returned the complaint, stating that Davis had
not signed it, see Dkt. 4, she submitted a second
complaint, signed only by her. Dkt. 5. I will consider the
two complaints together. But even together, plaintiffs'
allegations are sparse and there are problems with the
combined complaint that I must address.
plaintiffs to be alleging that N.L.D. was a student at
Crestwood Elementary School and that he has
attention-deficit/hyperactivity disorder (ADHD) for which he
takes medication. In January 2019, N.L.D. was injured on the
playground when he walked or ran into a pole. Plaintiffs say
that he “was sitting next to two staff [members] and a
kid ask[ed] him to come play the drums [so he] started to go
play the drums and didn't stop running.” Dkt. 5, at
2. Plaintiffs say that “[the school has] safety
precautions for kids with different needs” but that all
of the children are placed together for recess. Dkt. 1, at 3.
They say that because of the accident, N.L.D. “may need
false teeth for the rest of his life.” Id. at
4. Plaintiffs say that they do not know precisely what
happened, but they suggest that N.L.D. should have been
better monitored because of his ADHD and the medication he
was taking. I am not sure whether they mean that the two
staff members N.L.D. was sitting by were supposed to be
paying extra attention to him or that they should have done
something once he got up to run.
are two major problems with plaintiffs' allegations.
First, they name N.L.D. as a plaintiff, but they cannot
represent him by themselves without counsel. Tuttle v.
Illinois Dept of Children & Family Servs., 7 F.3d
238 (7th Cir. 1993) (“Although a parent has a right to
litigate claims on his own behalf without an attorney, he
cannot litigate the claims of his children unless he obtains
counsel.”); see also Bullock v. Dioguardi, 847
F.Supp. 553, 560 (N.D. Ill. 1993) (“A parent may sue on
behalf of his or her minor child as a next friend if the
parent is represented by counsel and has no interests that
conflict with those of the child.”).
even if N.L.D. were represented by counsel, there is a larger
problem: plaintiffs' allegations do not support claims
over which this federal court may exercise jurisdiction. On
each of the complaint forms plaintiffs submit, they check the
box stating that they are suing under state law, which makes
sense because the most obvious claims they might bring in
this lawsuit are ones for negligence under Wisconsin law. But
if the only claims they bring are under state law, this court
cannot exercise jurisdiction over the case unless they
establish complete “diversity of citizenship”
among the parties-that is, the plaintiffs are citizens of
different states than the defendants-and that the amount in
controversy exceeds $75, 000. See 28 U.S.C. §
1332. In each of their complaints, plaintiffs say that they
are Wisconsin citizens. The city of Madison is also a
Wisconsin citizen, so this court cannot exercise diversity
jurisdiction over the state-law claims.
diversity-jurisdiction problem would not matter if plaintiffs
stated claims for relief under federal law. Pro se plaintiffs
are generally not required to plead legal theories, Small
v. Chao, 398 F.3d 894, 898 (7th Cir. 2005), so their
failure to name any federal theories here does not in itself
doom the case. But my own research does not reveal any
federal claims that plaintiffs may pursue, at least not given
their current allegations. See, e.g., Edwards v.
Sch. Dist. of Baraboo, 570 F.Supp.2d 1077, 1084 (W.D.
Wis. 2008) (dismissing parents' federal-law claims under
Individuals with Disabilities Education Act, Americans with
Disabilities Act, and Due Process Clause of the United States
Constitution). In limited circumstances, government actors
could be liable for an injury under the Due Process Clause
when the actor “affirmatively places a particular
individual in a position of danger the individual would not
otherwise have faced.” Buchanan-Moore v. Cnty. of
Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (internal
quotation omitted). But this type of “state-created
danger” claim is limited to cases in which the
government's failure to protect the individual
“shock[s] the conscience.” Id. at 827-28
(internal quotation omitted). Plaintiffs' current
allegations do not meet that standard.
Rule of Civil Procedure 8(a)(2) requires a complaint to
include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Under
Rule 8(d), “each allegation must be simple, concise,
and direct.” The primary purpose of these rules is fair
notice. A complaint “must be presented with
intelligibility sufficient for a court or opposing party to
understand whether a valid claim is alleged and if so what it
is.” Vicom, Inc. v. Harbridge Merchant Serv's,
Inc., 20 F.3d 771, 775 (7th Cir. 1994). At this point,
plaintiffs fail to explain why this is not simply a
negligence case that belongs in state court. Their
allegations do not plausibly show that school staff's
actions or inactions subjected N.L.D. to danger that could
support a federal due process claim under the state-created
dismiss plaintiffs' current complaint. If they believe
that the facts of this case support a due process claim under
the state-created danger doctrine, then they may file an
amended complaint better explaining why they believe that
this is so. They should draft their amended complaint as if
they were telling a story to people who know nothing about
the events at issue. In particular, they should explain why
the danger N.L.D. faced was beyond that which any child faces
on the playground, and what school employees did or did not
do to subject N.L.D. to that danger. Because at present
plaintiffs sue only the city, they should also explain
whether school employees' actions or inactions were the
result of a school policy or custom. See Monell v. Dept
of Soc. Servs., 436 U.S. 658, 691 (1978) (municipality
may held liable under 42 U.S.C. § 1983 only if the
municipality has a policy or custom that causes a
plaintiffs' new allegations fail to state a federal claim
for relief, or if they do not respond to this order, I will
dismiss the case for lack of subject-matter jurisdiction.
1. Plaintiffs' complaint, Dkt. 1 and Dkt. 5, is DISMISSED
for failure to comply with ...