United States District Court, D. Maine
THOMAS KLOS and MESENIA GUZMÁN, as parents and next friends of E.K., a minor, Plaintiffs
WENDY BELANGER, et al., Defendants
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND
RECOMMENDED DECISION ON 28 U.S.C. § 1915(E)(2)
H. Rich III, United States Magistrate Judge.
Klos and Mesenia Guzmán, as parents and next friends
of E.K., a minor, sue Maine School Administrative District 13
(“District”), the Maine Department of Education
(“MDOE”), and 16 individuals, including school
personnel, school attorneys, and MDOE personnel, for
violations of, inter alia, the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C.
§ 1400 et seq., the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101 et
seq., and their due process rights. See
Complaint (ECF No. 1) ¶¶ 2, 4-21, 149-54. I grant
the plaintiffs' request to proceed in forma
pauperis and, because the complaint states a claim
against the District pursuant to the IDEA, recommend that the
court permit this case to proceed.
Application To Proceed in Forma Pauperis
forma pauperis status is available under 28 U.S.C.
§ 1915(a)(1). In his motion to proceed in forma
pauperis, plaintiff Klos declares under penalty of
perjury that (i) his income consists of Social Security
Disability payments totaling $1, 103 monthly for himself and
$551 for his child, (ii) he has $74.54 in cash in a checking
or savings account, (iii) he owns a 2001 Subaru Outback worth
approximately $1, 000, (iv) he has a mortgage payment of
$730.11 monthly as well as approximately $253 monthly in
utility costs (water, sewer, electricity, and phone), and (v)
he has approximately $60, 000 in student loan debt. Even
assuming, as the word “mortgage” suggests, that
the plaintiff owns real estate, these circumstances entitle
him to proceed in forma pauperis.
Section 1915(e)(2)(B) Review
Applicable Legal Standard
federal in forma pauperis statute, 28 U.S.C. §
1915, is designed to ensure meaningful access to the federal
courts for those persons unable to pay the costs of bringing
an action. When a party is proceeding in forma
pauperis, however, “the court shall dismiss the
case at any time if the court determines[, ]” inter
alia, that the action is “frivolous or
malicious” or “fails to state a claim on which
relief may be granted” or “seeks monetary relief
against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B).
[under § 1915] are often made sua sponte prior
to the issuance of process, so as to spare prospective
defendants the inconvenience and expense of answering such
complaints.” Neitzke v. Williams, 490 U.S.
319, 324 (1989); see also Mallard v. United States Dist.
Court S.D. Iowa, 490 U.S. 296, 307-08 (1989)
(“Section 1915(d), for example, authorizes courts to
dismiss a ‘frivolous or malicious' action, but
there is little doubt they would have power to do so even in
the absence of this statutory
considering whether a complaint states a claim for which
relief may be granted, a court must assume the truth of all
well-plead facts and give the plaintiff the benefit of all
reasonable inferences therefrom. Ocasio-Hernández
v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir.
2011). A complaint fails to state a claim upon which relief
can be granted if it does not plead “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
a pro se plaintiff's complaint is subject to
“less stringent standards than formal pleadings drafted
by lawyers, ” Haines v. Kerner, 404 U.S. 519,
520 (1972), this is “not to say that pro se plaintiffs
are not required to plead basic facts sufficient to state a
claim[, ]” Ferranti v. Moran, 618 F.2d 888,
890 (1st Cir. 1980). To allege a civil action in federal
court, it is not enough for a plaintiff merely to allege that
a defendant acted unlawfully; a plaintiff must affirmatively
allege facts that identify the manner in which the defendant
subjected the plaintiff to a harm for which the law affords a
remedy. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
As noted, the statute that provides for waiver of the filing
fee also requires the court to determine whether the
plaintiff's case may proceed. In other words, the
plaintiff's complaint must be dismissed if the court
finds it to be frivolous or malicious, seeks monetary relief
from a defendant who is immune from such relief, or fails to
state a claim upon which relief may be granted. 28 U.S.C.
§ 1915(e)(2)(B). In this regard, a pro se
plaintiff's complaint must be read liberally. Donovan
v. Maine, 276 F.3d 87, 94 (1st Cir. 2002).
read, the plaintiff's complaint alleges, in relevant
E.K., a minor child with autism, attention deficit
hyperactivity disorder (“ADHD”), and other
developmental disorders, attended Moscow Elementary School
from 2014 through September 2018. Complaint ¶ 3. In
December 2016, Edward Ferreira, then the District's
Director of Special Education, conducted a meeting during
which E.K. was determined eligible for special education
services in the category of “emotional
disturbance.” Id. ¶ 41.
District did not hold a subsequent meeting to draft an
individualized education program (“IEP”), instead
drafting the IEP without input from the plaintiffs.
Id. ¶ 43. The District claims to have
implemented the IEP in late January 2017. Id. The
IEP required weekly therapy with Marcy Melcher, as well as
referral to Ms. Melcher and notification to the plaintiffs
whenever E.K. became emotionally dysregulated. Id.
Although the District requested that the plaintiffs sign