Smith v. Lincoln Public Schools

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LAKISHA M. SMITH, and ANTENISE L.
GILMORE,
Plaintiffs,
vs.
LINCOLN PUBLIC SCHOOLS, Lincoln
Northwest High School;
Defendant.
4:25CV3027
MEMORANDUM AND ORDER
The matter is before the Court on the Amended Complaint (the “Amended
Complaint”) filed on May 23, 2025, pursuant to 42 U.S.C. § 1983 by Plaintiffs Lakisha M.
Smith (“Smith”) and Antenise L. Gilmore (“Gilmore”), non-prisoners proceeding in forma
pauperis.1 Filing No. 7. The Court construes the Amended Complaint as a supplement
to their initial complaint (the “Initial Complaint”) filed February 10, 2025, Filing No. 1, which
this Court found was subject to dismissal without amendment under 28 U.S.C. § 1915(e)
(the “Initial Review”). Filing No. 6.
This Court now proceeds to review the Amended Complaint under 28 U.S.C. §
1915(e) and, for the reasons that follow, determines that due to multiple deficiencies, the
Amended Complaint is subject to summary dismissal. However, in lieu of dismissal the
Court grants Plaintiffs leave to file a second amended complaint in accordance with this
Memorandum and Order.
As an initial matter, the Amended Complaint fails to comply with Rules 8, 10 or 11
of the Federal Rules of Civil Procedure. Rule 8 “contemplate[s] the statement of
1 See Filing No. 5 and Filing No. 9 (granting leave to proceed in forma pauperis).
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circumstances, occurrences, and events in support of the claim presented.” Bell Atlantic
v. Twombly, 550 U.S. 544, 556 n. 3 (2007) (citation and internal quotation omitted). Rule
8(a)(2) requires “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8(d)(1) provides that each allegation in a
pleading “must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1).
Federal Rule of Civil Procedure 10(b) provides:
Paragraphs; Separate Statements. A party must state its claims or defenses
in numbered paragraphs, each limited as far as practicable to a single set
of circumstances. A later pleading may refer by number to a paragraph in
an earlier pleading. If doing so would promote clarity, each claim founded
on a separate transaction or occurrence—and each defense other than a
denial—must be stated in a separate count or defense.
Fed. R. Civ. P. 10(b).
The Amended Complaint violates both Rule 8 and Rule 10(b). It does not
represent a short and plain statement of the claim showing that Plaintiffs are entitled to
relief, and its allegations are neither simple, concise, nor direct. It also fails to contain a
proper case caption and does not clearly identify any of the parties involved as it fails to
designate the names or the plaintiffs or defendant(s). See Filing No. 7; see also NECivR
10.1(a)(3) (“A document must plainly show the case caption, a description or designation
of its contents, and the party or person/entity on whose behalf it is filed.”).
Moreover, although both Smith and Gilmore are named as Plaintiffs, Smith did not
sign the Amended Complaint. See Filing No. 7 at 2. Federal Rule of Civil Procedure
11(a) provides that “[e]very pleading, written motion, and other paper must be signed by
at least one attorney of record in the attorney's name—or by a party personally if the party
is unrepresented.”
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The Court shall therefore order Plaintiffs to file a second amended complaint that
complies with Federal Rule of Civil Procedure 8, 10, and 11 and the Court’s Local Rules.
While no further review of the Amended Complaint is necessary, the Court notes that
while Smith is the parent/guardian of Gilmore,2 see Filing No. 7 at 4, to the extent the §
1983 claims in the Amended Complaint relate only to Gilmore’s rights, Smith cannot bring
suit on behalf of Gilmore, as opposed to alleging claims of her own, because Smith is
proceeding pro se. This is so because although a plaintiff may be entitled to bring suit in
a representative capacity, for example, to redress the alleged violations of his or her
daughter's constitutional rights, see Fed. R. Civ. P. 17(c)(1)(A) (authorizing a general
guardian to sue on behalf of a minor), a plaintiff cannot do so when appearing pro se.3
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). Therefore, any further §
1983 claims brought by Smith on behalf of Gilmore shall be dismissed from this action
without prejudice and without further notice.
Liberally construed, however, it appears that Smith may sue under the Individuals
with Disabilities Education Act (“IDEA”). Filing No. 7 at 2. While it is true that parents
proceeding pro se, such as Smith, are entitled to prosecute IDEA claims on their own
2 In its review of the initial complaint filed and signed only by Smith, the Court dismissed Gilmore from the
action without prejudice because it was unclear if Gilmore was an independent party to this suit or if Smith
sought to sue on Gilmore’s behalf, which Smith could not do pro se. See Filing No. 6 at 2–3.
3 “While there are some situations in which parents may bring pro se claims on behalf of their children—
such as an application for Social Security benefits—no comparable exception has ever been recognized
for a lawsuit based on § 1983 or general state tort law.” Stephenson v. Bruno, No. 4:14CV3097, 2014 WL
5850837, at *4 (D. Neb. Nov. 12, 2014) (quoting Nunley v. Erdmann, No. C14-4016-MWB, 2014 WL
5020253, at *4 (N.D. Iowa Oct. 8, 2014) (internal quotation marks and citation omitted)). Moreover, as a
general rule, a plaintiff must assert her legal rights or interests and not “the legal rights or interests of third
parties.” Jones v. Nebraska, No. 4:11CV3107, 2011 WL 4711919, at *2 (D. Neb. Oct. 6, 2011) (citing Warth
v. Seldin, 422 U.S. 490, 498–99 (1975)).
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behalf, see Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 535
(2007), the majority of federal courts have held that pro se parents cannot appear on
behalf of their child. See Rights of Parents to Proceed Pro Se in Actions Under Individuals
with Disabilities Education Act, 16 A.L.R. Fed. 2d 467, § 2 (2007). However, as the Eighth
Circuit has not affirmatively addressed this issue, for purposes of this initial review only,
the Court will consider any IDEA claims raised in a second amended complaint both by
Gilmore and by Smith on behalf of Gilmore.
IT IS THEREFORE ORDERED that:
1. Plaintiffs shall have until December 8, 2025, from the date of this
Memorandum and Order to file a second amended complaint that clearly states a claim
or claims upon which relief may be granted against any named Defendants in accordance
with this Memorandum and Order. If Plaintiffs fail to file a second amended complaint by
the December 8, 2025, deadline, this matter will be dismissed without further notice.
Plaintiffs are WARNED that motions or pleadings must be signed by each unrepresented
Plaintiff. Failure to comply with this requirement shall result in the pleading be stricken
pursuant to Rule 11(a).
2. The Clerk of Court is directed to set a pro se case management deadline in
this matter with the following text: December 8, 2025: deadline for second amended
complaint.
3. The Clerk of the Court is directed to send Plaintiffs a non-prisoner civil
complaint form.
4. The Court reserves the right to conduct further review of Plaintiffs’ claims
pursuant to 28 U.S.C. § 1915(e)(2) in the event they file a second amended complaint.
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Dated this 7th day of November, 2025.
BY THE COURT:
Joseph F. Bataillon
Senior United States District Judge
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