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 2012-04

Cole v. Department of Education ( 2012 )


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  •          11-1186-cv
Cole v. Department of Education
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1            At a stated term of the United States Court of Appeals for
2       the Second Circuit, held at the Daniel Patrick Moynihan United
3       States Courthouse, 500 Pearl Street, in the City of New York, on
4       the 5th day of April, two thousand twelve.
5
6       PRESENT:
7                 DEBRA ANN LIVINGSTON,
8                 GERARD E. LYNCH,
9                 CHRISTOPHER F. DRONEY,
10                      Circuit Judges.
11       _____________________________________
12
13       Willie James Cole, Willie Cole,
14       Yvette Cole,
15
16                                  Plaintiffs-Appellants,
17
18                         v.                                    11-1186-cv
19
20       Principal Jacqui Getz, A.P. Susan
21       Federici, City of New York,
22
23                                  Defendants-Appellees,
24
25       Department of Education P.S. 87, P.S. 87,
26
27                      Defendants.
28       _____________________________________
29
30       FOR PLAINTIFFS-APPELLANTS:                Willie James Cole, Yvette Cole, pro
31                                                 se, New York, N.Y.
1
1   FOR DEFENDANTS-APPELLEES:        Karen M. Griffin, Francis F.
2                                    Caputo, for Michael A. Cardozo,
3                                    Corporation Counsel of the City of
4                                    New York, New York, N.Y.
5
6           Appeal from the judgment of the United States District Court
7   for the Southern District of New York (Hellerstein, J.).
8           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
9   DECREED that decision is DEFERRED pending the possible appearance
10   of counsel.
11           Plaintiffs-Appellants appeal from the February 25, 2011 order
12   of the district court declining to appoint counsel for Plaintiff-
13   Appellant Willie Cole, a minor, and dismissing, without prejudice,
14   the
    42 U.S.C. § 1983
     claims brought on Willie Cole’s behalf by his
15   parents, who are proceeding pro se.         We assume the parties’
16   familiarity with the underlying facts, the procedural history of
17   the case, and the issues on appeal.
18           Although federal law affords parties a statutory right to
19   “plead and conduct their own cases,”
    28 U.S.C. § 1654
    , that statute
20   does not permit “unlicensed laymen to represent anyone else other
21   than themselves,”     Lattanzio v. COMTA,
    481 F.3d 137
    , 139 (2d Cir.
22   2007) (internal quotation marks omitted).       We have specifically
23   held that non-lawyer parents do not have the right to represent
24   their children in appellate proceedings before this Court.        See
25   Tindall v. Poultney High Sch. Dist.,
    414 F.3d 281
    , 286 (2d Cir.
26   2005)     (“[O]ur   cases   prohibiting   non-lawyer   parents   from
2
1   representing     their    children         apply     to     appeals   to    this
2   Court . . . .”); Cheung v. Youth Orchestra Found. of Buffalo, Inc.,
3
    906 F.2d 59
    , 61 (2d Cir. 1990) (“[A] non-attorney parent must be
4   represented by counsel in bringing an action on behalf of his or
5   her child.”).
6         The only claims on appeal are those brought on Willie Cole’s
7   behalf by his parents. The district court determined that it would
8   be inappropriate to appoint counsel for Willie Cole because his
9   claim was not likely to be of substance.             We find no error in this
10   determination. However, we are not permitted to hear the appeal on
11   the merits “unless and until [Willie Cole] is represented by
12   counsel.”      Tindall,
    414 F.3d at 286
    .        Accordingly,   without
13   expressing any opinion on the merits of Willie Cole’s claims, we
14   will defer consideration of the appeal for forty-five days pending
15   the possible appearance of counsel to represent Willie Cole.                 See
16
    id.
       If counsel appears, the appeal will proceed with briefing and
17   argument before a new panel. If counsel does not appear, the Clerk
18   is directed to enter an order dismissing the appeal for want of
19   such counsel.
20
21                                     FOR THE COURT:
22                                     Catherine O’Hagan Wolfe, Clerk
23
24
3