18‐1331
Whitfield v. Johnson
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 13th day of March, two thousand
nineteen.
PRESENT:
DENNIS JACOBS,
GERARD E. LYNCH,
Circuit Judges,
LAWRENCE J. VILARDO,*
District Judge.
_____________________________________
Lorren Vincente Whitfield, DBA Lorren V.
Whitfield,
Plaintiff‐Appellant,
F.K.P.W.,
Plaintiff,
v. 18‐1331
* Judge Lawrence J. Vilardo, of the United States District Court for the Western District
of New York, sitting by designation.
Natalie Johnson, Shameeka McAllister,
Marleny Ariza, Judith James, Public
School 28 AKA Warren Prep Academy,
Hetal M. Shah, Dionne Lowery, Robin
Karasyk, Keisha Francis, Doe John/Jane 1–
25,
Defendants‐Appellees.
_____________________________________
FOR PLAINTIFF‐APPELLANT: Lorren V. Whitfield, pro se, Brooklyn,
NY.
FOR DEFENDANTS‐APPELLEES: No appearance.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Kuntz, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Loren Vincente Whitfield, pro se, attempts to assert claims on
behalf of his minor daughter, F.K.P.W., arising from a child‐neglect petition that
had been filed against him in state court. The district court dismissed the
complaint sua sponte, holding (1) neither Whitfield nor another person who had
signed the complaint (Angel Luis Torres, Jr.) could pursue a lawsuit on behalf of a
minor because they are not attorneys; and (2) in any event, the complaint failed to
comply with Federal Rule of Civil Procedure 8 because it did not contain a short
and plain statement of a claim. The original order dismissing the complaint
granted leave to amend within 30 days. Whitfield did not amend and instead
filed a notice of appeal. The district court then dismissed the complaint with
prejudice, but sua sponte vacated that order and stayed the case until this Court
decides the “interlocutory appeal.” We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues on appeal.
We first consider whether we have appellate jurisdiction. “A dismissal
with leave to amend is a non‐final order and not appealable.” Slayton v. Am.
Exp. Co., 460 F.3d 215, 224 (2d Cir. 2006). However, “we will treat a premature
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appeal from a judgment granting leave to amend as an appeal from a final
judgment if the deadline for amendment has passed.” Id. at 224 n.7; see also
Festa v. Local 3 Int’l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990) (per
curiam).
The first order dismissing the complaint was nonfinal and not immediately
appealable because it granted Whitfield 30 days to amend. But Whitfield filed
the notice of appeal after “the deadline for amendment ha[d] passed,” Slayton,
460 F.3d at 224 n.7, so we treat the appeal as one from a final judgment. Further,
the appeal is timely because the district court had not entered a separate
judgment; thus, the time to appeal did not start to run until 150 days after the
March 19 order was entered. See Fed. R. App. P. 4(a)(7); Fed. R. Civ. P. 58(c).
We conclude that we have appellate jurisdiction.
On the merits, the district court correctly ruled that Whitfield and Torres
(non‐attorneys) cannot bring claims on behalf of others. Sensational Smiles, LLC
v. Mullen, 793 F.3d 281, 285 (2d Cir. 2015) (“[I]ndividuals may proceed pro se, but
may not represent others without a law license.”).
We review the district court’s decision to dismiss the complaint pursuant to
Federal Rule of Civil Procedure 8 for abuse of discretion. See Kittay v.
Kornstein, 230 F.3d 531, 541 (2d Cir. 2000). Rule 8 requires a “short and plain
statement” of a claim showing “that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). Each averment must be “simple, concise, and direct,” Fed. R. Civ. P.
8(d)(1), and give “fair notice” of the claims asserted. Simmons v. Abruzzo, 49
F.3d 83, 86 (2d Cir. 1995). A complaint may be dismissed under Rule 8 if it “is so
confused, ambiguous, vague, or otherwise unintelligible that its true substance, if
any, is well disguised.” Id. Applying these standards here, we see no abuse of
discretion. Whitfield’s complaint was thoroughly confused, ambiguous, and
unintelligible, and failed to provide the defendants with fair notice of the claims
against them.
We have considered all of Whitfield’s remaining arguments and find them
to be without merit. For the foregoing reasons, the judgment of the district court
is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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