Jackson v. Russo et al

Filing 6

ORDER ADOPTING 5 REPORT AND RECOMMENDATION FOR DISMISSAL, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 6/7/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
GLORIA S. JACKSON,
Plaintiff,
VS.
RICHARD RUSSO, ET AL.,
Defendants.

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No. 16-2330-JDT-dkv

ORDER ADOPTING REPORT AND RECOMMENDATION FOR DISMISSAL,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On May 11, 2016, Plaintiff Gloria S. Jackson, a resident of Senatobia, Mississippi,
filed a pro se complaint pursuant to 42 U.S.C. § 1983, accompanied by a motion to proceed
in forma pauperis. (ECF Nos. 1 & 2.) United States Magistrate Judge Diane K. Vescovo
granted leave to proceed in forma pauperis on May 12, 2016. (ECF No. 4.) On May 13,
2016, Magistrate Judge Vescovo issued a Report and Recommendation (“R&R”) in which
she recommended dismissing the case sua sponte for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) and for improper venue pursuant to 28 U.S.C. § 1406(a). (ECF
No. 5.) Objections to the R&R were due within fourteen days, on or before May 31, 2016.
See Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a), (d). However, Plaintiff has filed
no objections.

Plaintiff has sued Richard Russo, identified as the football coach at Independence
High School in Independence, Mississippi, and Jeff Koontz, the coach at Holmes Community
College, which is located in Goodman, Mississippi. She seeks to bring claims on behalf of
her son, alleging that Defendant Russo “violated my son JJ’s right to develop his natural
talents in football” by not giving him sufficient playing time on the field and denying him
or not recommending him for scholarships. (ECF No. 1 at 2.) Plaintiff further alleges that
Russo conspired with his friend, Defendant Koontz, to destroy her son’s athletic career by
not giving him quality playing time and kicking him off the team. (Id.)
Magistrate Judge Vescovo first noted in the R&R that a pro se litigant can assert
claims in federal court on his or her own behalf but may not appear on another person’s
behalf. See 28 U.S.C. § 1654. Even the parent of a minor child may not, in many cases,
bring a pro se action on behalf of the child. See Shepherd v. Wellman, 313 F.3d 963, 970
(6th Cir. 2003). Furthermore, in this case, Plaintiff indicated in her in forma pauperis
affidavit that her son was an 18-year- old adult. (ECF No. 2 at 3.) Therefore, if Plaintiff’s
son wishes to bring his own lawsuit against Defendants Russo and Koontz, he may do do;
however, Plaintiff cannot litigate the claims for him in federal court.
The Magistrate Judge also determined, pursuant to 28 U.S.C. § 1391(b), that even if
Plaintiff had standing to bring the suit, venue would not be appropriate in this district.
Instead, the case should have been brought in Mississippi. A district court may transfer a
case which is brought in the wrong district to an appropriate district instead of dismissing
“if it be in the interest of justice.” 28 U.S.C. § 1406(a). However, because Plaintiff has no
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standing to bring the claims in this case on behalf of her son, Magistrate Judge Vescovo
found that transfer is not warranted in the interest of justice.
The Court finds no error in Magistrate Judge Vescovo’s conclusions. Therefore, the
Court ADOPTS the R&R and DISMISSES this case for failure to state a claim on which
relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and for improper venue
pursuant to 28 U.S.C. § 1406(a).
Pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure 24(a),
the Court CERTIFIES that an appeal by Plaintiff would not be taken in good faith and
DENIES leave to appeal in forma pauperis. Accordingly, if Petitioner files a notice of
appeal, she must also pay the entire $505 appellate filing fee or file a motion to proceed in
forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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