Wilson et al v. Board of Education of Fayette County et al, No. 5:2014cv00454 - Document 5 (E.D. Ky. 2014)
Court Description: MEMORANDUM OPINION & ORDER: (1) that Anthony Wilson shall SHOW CAUSE within 21 days as to why this matter should not be dismissed as to him, in his individual capacity for failure to state a claim; (2) GRANTING dft's 4 Motion for order holdin g in Abeyance and Requiring Entry of Appearance of Counsel on Behalf of Minor Plaintiff; (3) that Wilson shall have 30 days to OBTAIN COUNSEL & for counsel to make an entry of appearance on behalf of C.W.; failure to have counsel enter his/her appear ance will result in the dismissal of C.W.'s claims without prejudice for failure to prosecute; (4) that any further consideration of the Ex Parte Motion for Restraining Order & to set a hearing date for preliminary injunction hearing is held in abeyance until such time as the matter set forth in para 2 is finally resolved; (5) the clerk shall note that the Ex Parte Motion is inappropriately styled "ex parte" & shall remove the seal making that filing part of the public record. Signed by Judge Joseph M. Hood on 12/24/14.(KJR)cc: COR, Wilson (US Mail)
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Wilson et al v. Board of Education of Fayette County et al Doc. 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON ANTHONY D. WILSON, on behalf of himself and as parental guardian and best friend of C.W., a minor child, and C.W., a minor child, Plaintiffs, v. BOARD OF EDUCATION OF FAYETTE COUNTY, et al., DefendantS. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Case No. 14-CV-454-JMH MEMORANDUM OPINION AND ORDER *** The Court has reviewed the Complaint [DE 1-1] filed by Anthony D. Wilson on his own behalf and in his role as parental guardian and best friend of C.W., a minor child, as well as Defendants’ Motion for an Order Holding this Matter in Abeyance and Requiring Entry of an Appearance of Counsel on Behalf of the Minor Plaintiff [DE 4]. The Court also notes that Anthony D. Wilson has filed an Ex Parte Motion for Restraining Order and to Set Hearing Date for Preliminary Injunction Hearing [DE 3]. As an Complaint initial no matter, averment Anthony D. Wilson. of a the Court right can which discern has been from the denied to Rather, the Complaint avers that C.W., not Wilson, was denied enrollment at a particular elementary school 1 Dockets.Justia.com in violation of her rights under the Constitutions of the United States and the Commonwealth of Kentucky. Next, the Court finds merit in Defendants’ Motion to hold this matter in abeyance. Wilson has explained that he is not authorized to practice law in Kentucky at this time and that he is undertaking these proceedings on his own behalf and on behalf of his daughter, as her next friend, exclusively in a pro se capacity. [DE 2]. 28 U.S.C. § 1654 provides that “[i]n all courts of the United States the parties may plead and conduct their own cases personally or by counsel,” but that statute does not permit plaintiffs to appear pro se where interests other than their own are at stake. Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (citing Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) (“[B]ecause pro se means to appear for one's self a person other's may not cause.”)). appear Thus, on another “parents person's cannot behalf appear pro in se the on behalf of their minor children because a minor’s cause of action is her own and does not belong to her parent or representative.” Id. at 970-71 (citing Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)); see also Taylor v. Barlow, 378 S.W.3d 322, 326 (Ky. Ct. App. 2012) (holding that sole exception to licensure requirement for appearing in Kentucky state court as an officer of the court is made for one who is acting on his own behalf). 2 The consider Court any temporary fact, concludes request for restraining Wilson proceeding cannot pro that it relief order or represent se. would Thus, by be means of preliminary his the a request injunction child’s Court inappropriate interests concludes for if, in that to in that it is appropriate to hold further consideration of the Ex Parte Motion for Restraining Order and to Set Hearing Date for Preliminary Injunction Hearing [DE 3] in abeyance at this time until its show cause order, set forth below, is discharged or otherwise finally resolved. Finally, Restraining the Court Order and notes to that Set the Parte Date Hearing Ex for Motion for Preliminary Injunction Hearing [DE 3] is inappropriately styled “ex parte,” as the Court can see no reason for that matter to remain under seal and out of the view and knowledge of Defendants. Accordingly, IT IS ORDERED: (1) That Anthony D. Wilson, pro se and on his own behalf, shall SHOW CAUSE within twenty-one (21) days of entry of this order why this matter should not be dismissed as to him, in his individual capacity, for failure to state a claim under Fed. R. Civ. P. 12(b)(6). (2) Matter in That Defendants’ Abeyance and Motion Requiring for an Entry Order of an Holding Appearance Counsel on Behalf of the Minor Plaintiff [DE 4] is GRANTED; 3 this of (3) That Anthony D. Wilson, “as parental guardian and best friend of C.W., a minor child,” shall have thirty (30) days from entry of this order to OBTAIN COUNSEL and for counsel to make an entry of appearance on behalf of C.W. Failure to have counsel enter his or her appearance will result in the dismissal of C.W.’s claims in this matter without prejudice for failure to prosecute. (4) That any further consideration of the Ex Parte Motion for Restraining Order and to Set Hearing Date for Preliminary Injunction Hearing [DE 3] is held in abeyance until such time as the matter set forth in paragraph 2, above, is finally resolved. (5) That the Clerk shall note that the Ex Parte Motion for Restraining Order and to Set Hearing Date for Preliminary Injunction Hearing [DE 3] is inappropriately styled “ex parte” and shall remove the seal therefrom, making that filing part of the public record in this matter. This the 24th day of December, 2014. 4
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