2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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- 088 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 3 185

___________ RITA WATSON ,

Appellant

v. WASHINGTON TOWNSHIP OF GLOUCESTER COUNTY PUBLIC S CHOOL DISTRICT; CHARLES EARLING; THO MAS LICISYN; EILEEN ABBOT; JAMES SCOTT DZERIZOGSKI; SYNDER MURPHY; PATRONE; CHUCK WISELY; MARINO; MS SIMONE; MRS PETROSKI; MR PAUL JACQUES

____________________________________ On Appeal from the United States District Court for the District of New J ersey (D.C. Civil Action No. 09

- cv
- 0 3650 ) District Judge: Honorable Robert B. Kugler

____________________________________ Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

January 13, 2011
Before: SCIRICA, H ARDIMAN and VANASKIE, Circuit Judges

( F iled : January 24, 2011 )

_________ OPINION OF THE COURT

_________ PER CURIAM

. Rita Watson appeals the dismiss al of her amended complaint , which the District Court rejected because (i) Watson cannot assert claim s in federal court on behalf of her2

minor child , and (ii) the claims asserted on Watson’s own behalf a re insufficient as a
matter of law

. For the reason s that follow, w e will affirm.
Watson filed a pro se complaint in July 2009 presenting vaguely asserte d claims against the Washington Township of Gloucester County , New Jersey, School District and
the individual defendants on behalf of her so n, A.W , for alleged violations of A.W.’s rights in connection with his education . The District Court sua sponte ord ered Watson to file an amended complaint in compliance with Federal Rules of Civil Procedure 8 and 10.
Watson filed an a mended c omplaint s eek ing relief under six provisions of federal
law : (1) 18 U.S.C. § 241 (“Count One”); (2) 18 U.S.C. § 242 (“Count T wo”); (3) the N o Child Left Behind Act (“Count Three”); (4) “42

- 21

- IV

- 2000” (“Count Four”); (5) 42 U.S.C. § 1981 (“Count Five”); and (6) 42 U.S.C. § 1983 (“Count Six”). Watson alleges
that A.W. “did not receive fair and [/] or equal decision or treatment as other students” at school, allegedly as a result of racial discrimination

. D efe ndants allegedly conspired to

“ stagnate ” A.W.’s education , denied his federal rights , and deprived A.W. of “access to
the school and social events

. ” Watson allege s that A.W.’ s “treatment from the school
official was severe and harsh which cause [ d ] severe damages.” After Watson was granted leave to proceed in forma pauperis , d efendants moved
to dismiss , arguing that Watson improperly asserts claims on behalf of child who is no t a party to the case, that Counts One through Four fail to state a claim upon which relief can be granted, and that Counts Five and Six are inadequate ly pleaded and require a more
definite statement . The District Court treated the m otion to dismiss in pa rt as a motion3

under Rule 12(b)(1) challeng ing Watson’s standing to represent A.W. , and it held that
Watson lacks such standing because a parent who is not an attorney cannot a p pear pro se on behalf of her child

. T he District Court a dvised Watson that she could either retain
counsel for A.W. and proceed with the claims , or n ot proceed and have A.W.’s claims dismissed without prejudice. 1 The District Court noted that it would hold defendants’
motion to dismiss A.W.’s claims in abeyance for twenty days

. Insofar as Watson asserted claims in her own right, the District Court granted defendants’ motion to dismiss Counts One through Four. The District Court explained
that the statutes relied upon in C ounts On e through Three do not afford private rights of

ac tion , and that Count Four, to the extent Watson rel ies upon unspecified provisions of Title IV of the Civil Rights Act , fails to state a claim for relief, although the District
Court afforded Watson leave to amend as to Count Four. As to Counts Five and S ix
under 42 U.S.C. §§ 1981 and 1983, the District Court noted that Watson failed to identify
the actions d efendants took , what specific rights they allegedly violated , or what injury
she s uffered as a result. The District Court thus order ed Watson to prov ide a more
definite statement of these claims so that defendants could respond to them

. Watson thereafter advis ed the District Court that she had found a lawyer for A.W

. However, no lawyer entered an appearance, and Watson did not file a second amend ed

1 The District Court declined to extend th e option of appoint ing counsel under 28 U.S.C. § 1915(e)(1) to represent A.W. because a Magistrate Judge had already denied Watson’s motion for an appointment of pro bono counsel in the case.4

complaint or provide a more definite statement in accordance with the District Court’s order. Consequently, the District Court entered an order dismiss ing the claims asserted
on behalf of A.W. for lack of subject matter jurisdiction

. Watson timely filed this appeal. We have appellate jurisdiction under 28 U.S.C. § 1291

. 2 “ Whether subject matter jurisdiction exists is a question of law, and thus our standard of review is de novo.” In re
W.R. Grace & Co. , 591 F.3d 164, 170 n.7 (3d Cir. 2009). Our review is plenary over a decision to grant a motion to dismiss under Rule 12(b)(6)

. Grier v. Klem , 591 F.3d 672, 676 (3d Cir. 2010). “ We do not inquire whether a plaintiff will ultimately prevail when considering a motion to dismiss, only whether the plaintiff is entitled to offer evidence to support his or her claims. ” Id. The District Court correctly dismissed the claims asserted on behalf of A.W. A s a

non
- attorney, Watson is permitted to represent h erself in federal court , but s he cannot act

as “pro se cou nsel ” for her child , whi ch she sought to do here. See 28 U.S.C. § 1654;
Osei

- Afriyie v. Med. Coll. of Pa. , 937 F.2d 876, 882

- 83 (3d Cir. 1991). The District Court afforded Watson an opportunity to retain counsel for A.W., but she failed to do so

. Furthe r, we cannot conclude that the District Court abused its discretion in refusing to appoint counsel

. See Parham v. Johnson , 126 F.3d 454, 457

- 58 (3d Cir. 1997) (discussing standard for appointment of counsel under 28 U.S.C. § 1915(e)(1)). Watson

2 Although the District Court also denied Watson’s post

- judgmen t motion for reconsideration, Watson did not appeal or file an amended notice of appeal from that order. S ee Fed. R. App. P. 4(a)(4)(B)(ii). Consequently, we lack jurisdiction to review the order denying reconsideration.5

moved for court

- appointed counsel at the time she filed her amended complaint, arguing
that she needed a lawyer to assist in pursuing claims on behalf of A.W. A Magistrate Judge held oral argument and issued a written decision denying the motion . The Magistrate J udge fully considered the Parham factors, and de clined to appoint counsel in part based on representations made by Watson at oral argument. We discern no error in the Magistrate Judge’s decision

. For these reasons , the District Court properly dismissed

w ithout prejudice all claims assert ed o n behalf of A.W. In addition, t he District Court properly dismissed the a mended c omplaint under Rule 12(b)(6) insofar as Watson assert ed claims on her own behalf

. As to Counts One through Three, Watson does not have a private right of action to sue the defendants under 18 U.S.C. § § 241 or 242 , see , e.g. , Aldabe v. Aldabe , 616 F.2d 1089, 1092 (9th Cir. 1980) , or the No Child Left Behind Act. See Newark Parents Ass’ n v. Newark Pub. Sch. , 547 F.3d 199, 214 (3d Cir. 2008 ) (holding that “ Congress did not intend to give individuals a right to enforce the notice and supplemental educational services provisions of the Act”). In Count Four, Watson vaguely invoked unspecified provision s of Title VI of the Civil Rights Act of 1 964, which the District Court correctly held was insufficient
to state a claim for relief . Although the District Court afforded Watson leave to amend
Count Four , she failed to do so. Finally, the civil rights claims in Counts Five and Six are, as the Dis trict Court explained, inadequate even under the liberal notice pleading
standard a nd insufficient to allow defendants to formulate a ny meaningful response to the
claims . Watson failed to comply with the order that she provide a more definite6

statement

. Accordingly, these claims were properly dismissed.
For foregoing reasons , and because this appeal presents “no substantial question , ”
3d Cir. I.O.P. 10.6 , w e will summarily affirm the District Court’s judgment

.