Malone, Anthony v. Nielson, Robert

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4112
ANTHONY MALONE and
BARBARA SIMS-MALONE, on
behalf of ANTHONY DELANCE
MALONE, deceased son,
Plaintiffs-Appellants,
v.
ROBERT NIELSON, Superintendent,
Bloomington Public Schools, District No.
87, individually and in his official
capacity, BECKY FRANCOIS, Director of
Special Education, Bloomington Public
Schools, District No. 87, individually
and in her official capacity, CINDY
HELMERS, High School Principal,
Bloomington Public Schools, District
No. 87, individually and in her official
capacity, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 C 1137—Michael M. Mihm, Judge.
____________
SUBMITTED APRIL 26, 2006—DECIDED JANUARY 22, 2007
____________
2 No. 05-4112
Before COFFEY, RIPPLE and ROVNER, Circuit Judges.
PER CURIAM. Anthony Malone and Barbara Sims-Malone
brought this action under the Individuals with Disabil-
ities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.,
and 42 U.S.C. § 1983, alleging that the Illinois State Board
of Education and various administrators and teachers
employed by the Board of Education of the Bloomington
Public Schools, District No. 87 (“District”), violated their
son’s right to a free and appropriate public education
under the IDEA. The district court granted the defen-
dants’ motion to dismiss because the Malones failed to
state a claim under either the IDEA or § 1983. The Malones
appeal that decision.
I
Given the procedural posture of the case, we draw all
inferences in the light most favorable to the Malones, and
our review of the dismissal is de novo. See Mosely v. Bd. of
Educ. of Chicago, 434 F.3d 527, 529 (7th Cir. 2006).
From 1999 through his graduation in 2003, Anthony
DeLance “Lance” Malone attended high school in the
Bloomington Public Schools District No. 87 in Blooming-
ton, Illinois. Before high school, Lance had been diagnosed
with specific learning disabilities as defined in 105 ILCS
5/14-1.03a, and was qualified as a child with a disability
within the meaning of 105 ILCS 5/14-1.02 and 20 U.S.C.
§ 1401(3)(A). Accordingly, while enrolled in high school,
he was entitled to receive special educational services
through an Individualized Education Program (“IEP”)
developed by the District in consultation with his parents.
See 20 U.S.C. § 1414(d).
No. 05-4112 3
The Malones claim that, beginning with the 1999-2000
school year, the District ignored or flouted many provi-
sions of Lance’s IEP and the procedural safeguards of
the IDEA. According to the Malones, the defendants
deprived Lance of instruction by removing him from one
of his classes for a three-week period and placing him
in detention for that class period, by suspending him for
thirty-one days in a single year, by refusing to let him
make up missed work and by refusing to modify tests
and assignments and to provide one-on-one help in
accordance with his IEP. On one occasion, Lance was
barred from the cafeteria for three weeks and placed in
detention during his lunch period; in detention, he was
given a cold sandwich and water instead of a cafeteria
meal. The defendants, moreover, failed to notify the
Malones about these disciplinary actions or to review
the IEP to develop a behavior intervention plan. The
Malones also allege that the defendants isolated Lance
from other students by placing his desk in a corner,
excluding him from group assignments, enforcing cam-
pus rules that were relaxed for others and “interfering”
with his ability to participate in extra-curricular activ-
ities such as basketball. Finally, the Malones allege that
the defendants made hurtful comments to Lance, such as
telling him that none of his teachers wanted him in their
classes because he smelled.
Beginning in March 2000, the Malones wrote a number
of letters to District officers protesting this treatment, and,
in October 2000, they were granted a hearing before an
Impartial Hearing Officer (“IHO”) licensed by the state. At
around the same time, the Malones took Lance to a psy-
chologist who diagnosed him with anxiety and depres-
sion. The Malones claim that the IHO ordered the District
to pay for counseling for Lance, but no order ever was
issued.
4 No. 05-4112
None of the parties offer any explanation as to what
happened to derail the proceedings. The next thing
we know is that, in January 2002, a new IHO was ap-
pointed to handle Lance’s case, and the Malones asked
for another hearing. The parties met for a prehearing
conference in March, and Lance began twice-monthly
sessions with the psychologist. After that, a series of
postponements initiated by both sides delayed the hear-
ing, which never did occur.
Lance turned 18 in September 2002; he graduated from
the high school the following June, and then, in August
2003, he died.1 The defendants moved the IHO to dismiss
the case in October 2003. After allowing the Malones a
chance to respond, the IHO granted the motion. The IHO
reasoned that he was empowered to order only prospec-
tive relief, and he could not make factual findings in the
absence of the power to grant relief.
The Malones then turned to the district court, claiming
a right of action on behalf of Lance’s estate. They seek
reimbursement under the IDEA for expenses Lance
incurred for psychological counseling, for “medical
services” and for transportation to and from his psycho-
logical and medical appointments, see R.60 at 9-10; they
also seek to recover attorneys’ fees and costs. Additionally,
the Malones claim that Lance is entitled under § 1983
to “compensatory damages,” damages for “emotional
distress,” punitive damages and attorneys’ fees and costs,
id. at 19.
The district court dismissed the Malones’ complaint. It
held that the Malones had failed to state a claim because
the IDEA does not provide for money damages. The
1
The cause of Lance’s death is not a matter of record.
No. 05-4112 5
court acknowledged that the Malones seek “reimburse-
ment” rather than “damages” but concluded there is no
distinction in this case “because there is nothing in the
Complaint to show that Defendants were obligated under
the agreed-upon IEP to provide Lance with counseling
services.” R.86 at 7-8. The court also held that the Malones
fail to state a claim under § 1983 because, in its view,
a plaintiff cannot “achieve any relief under Section
1983, based solely on an underlying violation of the IDEA.”
Id. at 13.
II
Before turning to the merits of the IDEA and § 1983
claims, we must address the threshold issue of whether
the Malones may continue to litigate this action. The
Malones brought this action “on behalf of Anthony
DeLance Malone, deceased, by and through their attor-
ney . . . .” R.60 at 3. However, the Malones are no longer
represented by counsel, but are proceeding pro se in this
appeal. Although individuals have a right to proceed
pro se, see 28 U.S.C. § 1654; Navin v. Park Ridge Sch. Dist. 64,
270 F.3d 1147, 1149 (7th Cir. 2001) (per curiam), admin-
istrators do not act on behalf of themselves, but on behalf
of all of the beneficiaries of an estate. Consequently, if the
administrator is not the sole beneficiary of the estate, then
he or she may not represent the estate in court. See Shepherd
v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002); Iannaccone v.
Law, 142 F.3d 553, 559 (2d Cir. 1998).2
2
This court has not decided whether an administrator or
executor who is the sole beneficiary of an estate without
creditors may appear pro se on its behalf.
6 No. 05-4112
In the present case, Lance died intestate and, under the
Illinois rules of intestate succession, the estate must be
distributed to the parents and siblings of the decedent in
equal parts. See 755 ILCS 5/2-1. The Malones, as
nonlawyers, may not represent the interests of Lance’s
four brothers and sisters. See Mosely, 434 F.3d at 532; Navin,
270 F.3d at 1149. Therefore they cannot proceed pro se
on any claim in which the estate is the real party in interest.
The § 1983 claim set forth in the Malones’ complaint is
such a claim. With respect to the § 1983 claim, this court
has held that whether the “claim survives the tort vic-
tim’s death . . . follows state law.” Hutchinson v. Spink, 126
F.3d 895, 898 (7th Cir. 1997). In Illinois, personal injury
suits survive the plaintiff’s death and inure to the benefit of
the plaintiff’s estate. See Anderson v. Romero, 42 F.3d
1121, 1123 (7th Cir. 1994); 755 ILCS 5/27-6.3 The § 1983
claim, therefore, properly belongs to Lance’s estate, and
the Malones may not pursue this claim on behalf of
Lance’s estate without securing the services of counsel.
The same is true of the claim for reimbursement under
the IDEA. As explained by the Fourth Circuit, standing
to pursue a reimbursement claim belongs to that party,
whether parents or child, “who actually expend[ed]
resources.” Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299
(4th Cir. 2005). The Malones’ complaint avers that it was
Lance, not they, who incurred the expenses for psycho-
logical counseling services, medical services and transpor-
tation, resulting from the defendants’ actions. Because
Lance is the one who “incurred the expense and suffered
the subsequent monetary injury,” the claim for reim-
3
The only exception to this rule is a claim for defamation.
No. 05-4112 7
bursement belonged to Lance, and, after his death, to his
estate. Consequently, the Malones may not pursue the
IDEA reimbursement claim on behalf of the estate with-
out representation by counsel.
Conclusion
The claims presently before the court properly belong
to Lance’s estate. Because the Malones may not proceed pro
se on those claims, we will grant the Malones sixty days to
obtain counsel to represent the interests of the estate. If the
Malones fail to secure counsel within 60 days of issuance of
this opinion, the appeal will be dismissed.4
IT IS SO ORDERED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
4
We express no opinion on the ultimate merits of either the
reimbursement claim under the IDEA or the claim for damages
under § 1983.
USCA-02-C-0072—1-22-07