Fernanders v. Kalamazoo Education Association

Filing 4

ORDER of Summary Dismissal. (Granting 2 Application to Proceed Without Prepaying Fees or Costs) Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANDERSON LEE FERNANDERS,
Plaintiff,
CASE NO. 16-CV-10318
HONORABLE GEORGE CARAM STEEH

v.
KALAMAZOO EDUCATION
ASSOCIATION,
Defendant.
/

ORDER OF SUMMARY DISMISSAL
Pro se plaintiff Anderson Lee Fernanders filed this civil rights action seeking to
recover for allegedly racially discriminatory treatment his minor daughter suffered at the
hands of her teachers. Plaintiff has demonstrated that he is indigent; thus, his request for
in forma pauperis status is granted. Having granted such status, the court must screen the
Complaint to determine whether the case is frivolous or fails to sate a claim on which relief
may be granted. 28 U.S.C. § 1915(e)(2)(B). For the reasons set forth below, plaintiff has
failed to state a claim and this action shall be dismissed.
In cases where the plaintiff is pro se, courts liberally construe the complaint and do
not hold it to the same stringent standard as formal pleadings drafted by lawyers. Haines
v. Kerner, 404 U.S. 519, 520-21 (1972). As an initial matter, the court notes that pro se
plaintiff may not represent his minor daughter. Parents cannot appear pro se on behalf of
their minor children because a minor’s personal cause of action is her own and does not
belong to or her parent or representative. Shepherd v. Wellman, 313 F.3d 963 (6th Cir.
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2002). Plaintiff can only represent himself pro se and cannot act as an attorney for his
child. 28 U.S.C. § 1654.
Plaintiff alleges “bystander injury” for discrimination in education against his daughter
under Title IV of the Civil Rights Act, 42 U.S.C. § 2000c-8. The purpose of Title IV is to
remedy discrimination in public schools. Gilmore v. Amityville Union Free School, 305 F.
Supp. 2d 271, 279 (E.D.N.Y. 2004). However, section 2000c-8 does not create a separate
cause of action, but merely preserves an individual’s right to sue under other civil rights
acts. Bedford v. Univ. of Louisville Sch. of Med., 887 F.2d 1086, *3 (6th Cir. 1989) (table
decision). Given plaintiff’s pro se status, the court considers other civil rights statutes to
determine whether plaintiff has a viable claim, namely 42 U.S.C. §§ 1983, 1981, 1985(3),
1986, and Title VI, and finds that he does not.
First, the court considers 42 U.S.C. § 1983. “A section 1983 claim is entirely
personal to the direct victim of the alleged constitutional tort.” Claybrook v. Birchwell, 199
F.3d 350, 357 (6th Cir. 2000). No cause of action exists for a victim’s family members for
emotional distress or any other consequent collateral injuries allegedly suffered by the
victim’s family members. Id. Because plaintiff has not alleged any injury that is personal
to him, but seeks to recover for emotional distress or “bystander” injury for the alleged
discrimination against his minor daughter, plaintiff has not stated a viable § 1983 claim.
Second, the court considers whether a claim might lie under 42 U.S.C. § 1981 which
prohibits discrimination in the making of public and private contracts. See St. Francis Coll.
v. Al-Khazraji, 481 U.S. 604, 609 (1987). The complaint does not plead that plaintiff
entered into any public or private contract with the defendant; thus, no claim lies under §
1981 either.
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Third, the court considers whether plaintiff might have stated a claim under 42
U.S.C. § 1985(3). To state such a claim, a plaintiff must prove: “1) a conspiracy; 2) for [the]
purpose of depriving, either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and immunities under the laws; 3) an act
in furtherance of the conspiracy; and 4) whereby a person is either injured in his person or
property or deprived of any right or privilege of a citizen of the United States.” Riddle v.
Egensperger, 266 F.3d 542, 549 (6th Cir.2001) (citation omitted). The plaintiff must also
“establish that the conspiracy was motivated by class-based animus.” Johnson v. Hills &
Dales General Hospital, 40 F.3d 837, 839 (6th Cir.1994). Notably, plaintiff has not alleged
the existence of a conspiracy. Plaintiff has sued only one entity: the Kalamazoo Education
Association (“KEA”), a volunteer association. Thus, it is clear no conspiracy exists as a
conspiracy requires an agreement of two or more persons. Any request for leave to amend
the Complaint to name individual teachers as defendants also would be futile. Even if the
court considered plaintiff’s allegations that two teachers employed by the Kalamazoo Public
Schools, discriminated against his daughter on the basis of race, this could not give rise
to a conspiracy claim either based on the intra-corporate conspiracy doctrine. That
doctrine provides:
It is basic in the law of conspiracy that you must have two persons or entities
to have a conspiracy. A corporation cannot conspire with itself any more
than a private individual can, and it is the general rule that the acts of the
agent are the acts of the corporation.
Hull v. Cuyahoga Valley Joint Voc. Sch. Dist. Bd. of Educ., 926 F.2d 505, 510 (6th Cir.
1991) (dismissing § 1985 conspiracy claim against various school officials on the basis of
the intra-corporate conspiracy doctrine). The Sixth Circuit has applied the intra-corporate
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conspiracy doctrine to claims brought under § 1985(3). Estate of Smithers v. City of Flint,
602 F.2d 758, 765 n.4 (6th Cir. 2010) see Epps-Milton v. Genesee Int. Sch. Dist., No. 1411861, 2014 WL 5817015, at *9 (E.D. Mich. Nov. 10, 2014) (no § 1985(3) conspiracy when
all defendants are employees or agents of the school district and/or the board of
education). Here, plaintiff alleges that two teachers discriminated against his daughter on
the basis of race. Both teachers are members of the Kalamazoo Public School system and
members of KEA, thus they are part of a single entity and their conduct cannot give rise to
a § 1985(3) claim. Having failed to allege a viable § 1985(3) claim, plaintiff cannot state
a claim under 42 U.S.C. § 1986. See Browder v. Tipton, 630 F.2d 1149, 1155 (6th Cir.
1980) (a cognizable § 1985 claim is a prerequisite to stating a claim § 1986).
Finally, the court considers whether a cause of action might lie under Title VI of the
Civil Rights Act which provides:
No person in the United States shall, on the ground of race, color, or national
origin, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal
financial assistance.
42 U.S.C. § 2000d. To establish a claim under Title VI, plaintiff must show “(1) that the
entity involved engaged in racial discrimination; (2) the entity involved is receiving federal
financial aid; and (3) [p]laintiff was an intended beneficiary of the program or activity
receiving the aid.” Samuel v. Excelsior College, No. 1-14-CV-456, 2014 WL 2105839
(N.D.N.Y. May 20, 2014). It is the student who is the proper plaintiff in a Title VI race
discrimination claim, as it is the student who is deprived of access to the educational
opportunities or benefits provided by the school. See Davis v. Monroe Cty. Bd. of Educ.,

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526 U.S. 629, -- (1999). Here, plaintiff has not sued on his minor daughter’s behalf, but on
his own behalf. Thus, he has no viable claim under Title VI.
Having found that plaintiff has failed to state a federal claim upon which relief can
be granted, the court exercises its discretion to dismiss without prejudice the supplemental
state laws claims pursuant to 28 U.S.C. § 1367(c)(3). See Musson Theatrical v. Federal
Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996) (“When all federal claims are
dismissed before trial, the balance of considerations usually will point to dismissing the
state law claims.”).
For the reasons set forth above, plaintiff’s federal civil rights claims are DISMISSED
WITH PREJUDICE for failure to state a claim, and plaintiff’s supplemental state law claims
are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Dated: February 17, 2016
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
February 17, 2016, by electronic and/or ordinary mail and also
on Anderson Lee Fernanders, 5801 Marlowe Dr.,
Flint, MI 48504.
s/Barbara Radke
Deputy Clerk

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