1In addition to the Town of Alton Police Department,

plaintiff names Grant Nichols, Prospect Mountain High School, and

Arthur W. Abelmann as defendants to this action.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Russell Scrocca and Corey Scrocca,

by Russell Scrocca as his parent

v. Civil No. 08-cv-42-JL

Town of Alton Police Department, et al.1

O R D E R

Before the Court is the pro se complaint of Russell Scrocca

(hereinafter “Scrocca” or “plaintiff”) filed on behalf of himself

and his minor son, Corey Scrocca (hereinafter “Corey”), pursuant

to 42 U.S.C. § 1983 (document no. 1). Because Scrocca has paid

his filing fee, and is proceeding pro se, the matter is before me

for preliminary review to determine whether or not Scrocca has

properly invoked the subject matter jurisdiction of this Court. 

See United States District Court District of New Hampshire Local

Rule (“LR”) 4.3(d)(1)(A). 

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Standard of Review

Under this Court’s local rules, when a pro se plaintiff

commences an action and pays the filing fee, the magistrate judge

is directed to conduct a preliminary review. LR 4.3(d)(1)(A). 

In conducting the preliminary review, the Court construes pro se

pleadings liberally, however inartfully pleaded. See Erickson v.

Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200 (2007) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner,

404 U.S. 519, 520-21 (1972) to construe pro se pleadings

liberally in favor of the pro se party). “The policy behind

affording pro se plaintiffs liberal interpretation is that if

they present sufficient facts, the court may intuit the correct

cause of action, even if it was imperfectly pled.” See Castro v.

United States, 540 U.S. 375, 381 (2003) (noting that courts may

construe pro se pleadings so as to avoid inappropriately

stringent rules and unnecessary dismissals of claims); Ahmed v.

Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). All of the

factual assertions made by a pro se plaintiff and inferences

reasonably drawn therefrom must be accepted as true. See id.

This review ensures that pro se pleadings are given fair and

meaningful consideration.

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Background

On February 7, 2005, Corey Scrocca was suspended from the

Prospect Mountain High School, where he was a student, for three

days. Corey’s father, Russell Scrocca, disagreed with the

imposition of the suspension, and met with school official Arthur

Abelmann to discuss the situation on February 7, 2005. During

the meeting, Scrocca and Abelmann disagreed as to the proper

course of action to take. Abelmann requested that Scrocca leave

the school grounds, which he did.

Scrocca reports that after the meeting, Abelmann filed a

report with the Alton Police Department that exaggerated their

disagreement, and falsely alleged that Scrocca had been loud and

disruptive during the meeting. As a result of that report, an

arrest warrant was issued for Scrocca charging him with creating

a disturbance in the school. Scrocca was arrested on February

25, 2005. The charge against Scrocca was eventually dismissed.

Scrocca now brings this action alleging that his federal

constitutional rights, as well as his rights under state law,

were violated by the defendants. Scrocca also alleges that

Corey’s federal constitutional rights were violated by the

suspension.

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Discussion

I. Claims Brought on Behalf of Plaintiff’s Minor Son

Parties to a federal lawsuit cannot be represented by anyone

other than themselves or a member of the bar. See 28 U.S.C. §

1654; see also LR 83.2(d) (“Persons who are not members of the

bar . . . will be allowed to appear before this court only on

their own behalf.”); LR 83.6(b) (“Pro se parties must appear

personally . . . . A pro se party may not authorize another

person who is not a member of the bar of this court to appear on

his or her behalf.”). For that reason, Scrocca, proceeding pro

se and not as a member of the bar of this Court, cannot represent

anyone but himself in this action, including his minor child. 

Accordingly, an attorney must represent Corey on the claims

raised, as they cannot be presented to this Court by Scrocca. 

An attorney must file an appearance on behalf of Corey

within thirty days of the date of this Order in order for the

claims raising Corey’s rights to proceed. If no attorney

appearance is filed within thirty days, I will recommend that the

claim alleging a cause of action on behalf of Corey be dismissed.

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242 U.S.C. § 1983 provides that:

Every person who under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen 

of the United States or other person within the 

jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the 

party injured in an action at law . . . .

5

II. Claims Brought on Behalf of Scrocca

Federal courts are courts of limited jurisdiction. Exxon

Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552 (2005)

(citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

377 (1994)). The presumption is that a federal court lacks

jurisdiction. Kokkonen, 511 U.S. at 377. Consequently, the

burden is on the plaintiff who claims jurisdiction to

affirmatively allege and prove jurisdiction. Id. To bring a

civil action within the court’s subject matter jurisdiction, a

plaintiff must allege that his action involves either a federal

question or diversity jurisdiction. See 28 U.S.C. §§ 1331 &

1332. 

Section 1983 creates a cause of action against those who,

acting under color of State law, violate federal constitutional

or statutory law. See 42 U.S.C. § 19832; Parratt v. Taylor, 451

Case 1:08-cv-00042-JL Document 3 Filed 02/12/08 Page 5 of 7
3To the extent that Scrocca alleges pendent claims based on

state law, arising out of the same facts and circumstances as the

federal claims, I find that these involve the same case or

controversy as the federal constitutional claims, and therefore

properly invoke the supplemental jurisdiction of this Court and

may proceed. See 28 U.S.C. § 1367.

6

U.S. 527, 535 (1981) (overruled on other grounds by Daniels v.

Williams, 474 U.S. 327, 330-331 (1986)); Wilson v. Town of

Mendon, 294 F.3d 1, 6 (1st Cir. 2002). Here, Scrocca has alleged

that school and police officials, acting under authority of state

law, have violated his federal constitutional rights. 

Accordingly, I find that, as to the claims alleging violations of

his own rights, Scrocca has properly invoked the subject matter

jurisdiction of this Court to allow those claims to proceed at

this time.3

Conclusion

Without commenting on the merits of the complaint, I find

that plaintiff has invoked this court’s subject matter

jurisdiction for the claims brought on his own behalf. 

As to the claim brought on behalf of Scrocca’s minor son, an

attorney must file an appearance on Corey’s behalf within thirty

days of the date of this Order, or I will recommend that claim be

dismissed.

Plaintiff is referred to Fed. R. Civ. P. 5, which requires

Case 1:08-cv-00042-JL Document 3 Filed 02/12/08 Page 6 of 7
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that every pleading after the complaint and every written motion,

notice, and similar paper be served on all parties, which service

shall be made by mailing it to the parties’ attorney(s). 

SO ORDERED. 

________________________________

James R. Muirhead

United States Magistrate Judge

Date: February 12, 2008

cc: Russell Scrocca, pro se

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