Wilson et al v. Board of Education of Fayette County et al
Filing
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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)
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.
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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
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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
would
relief
order
or
represent
se.
it
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
Hearing
Ex
Date
Parte
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;
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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.
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