Arnold v. Billins, et al

Filing 8

ORDER adopting 7 Report and Recommendations and dismissing Arnold's complaint. Signed by Judge Samuel H. Mays, Jr on 6/19/2018. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

LOLITA J. ARNOLD,
Plaintiff,
v.
GREGORY BILLINS, PRINCIPAL,
in his official and
individual capacity; MICHAEL
HOOTS, TEACHER, in his
official and individual
capacity; WILLIAM “BILL”
OLDHAM, SHERIFF, in his
official and individual
capacity; IBRAHAM ABDUL,
DEPUTY SCHOOL SECURITY
OFFICER, SHERIFF’S
DEPARTMENT, in his official
and individual capacity;
BOARD OF EDUCATION OF THE
COUNTY OF SHELBY COUNTY
SCHOOLS; DORSEY E. HOPSON,
II, SUPERINTENDENT, in his
official and individual
capacity,
Defendants.

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No. 18-cv-2261-SHM-dkv

ORDER

Before the Court is the Magistrate Judge’s Report and
Recommendation (the “Report”), dated May 25, 2018.
7.)

(ECF No.

The Report recommends sua sponte dismissal of Plaintiff

Lolita J. Arnold’s complaint under 28 U.S.C. § 1915.

(Id. at

24.) 1

Arnold has not filed an objection, and the deadline to

do so has passed.

For the following reasons, the Report is

ADOPTED, and Arnold’s complaint is DISMISSED.
On April 17 2018, Arnold filed a pro se complaint against
Defendants Gregory Billins, Principal; Michael Hoots, Teacher;
William “Bill” Oldham, Sheriff; Ibraham Abdul, Deputy (school
security officer, sheriff’s department); Board Of Education of
the County of Shelby County Schools; and Dorsey E. Hopson, II,
Superintendent.

(Compl., ECF No. 1.)

The complaint alleges

that Plaintiff’s minor child was “sexual harass[ed] and/or
[had] an inappropriate relationship from an authority figure
who[] was an employee of the Shelby County Schools System at
. . . the time of the alleged incident and is now an employee
of the Shelby County Schools System.”

(Id. at 1.)

Arnold

seeks to bring claims on behalf of her minor child under Title
IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681,
et seq. (“Title IX”) and “Tennessee Personal Tort of Tennessee
Code Annotated § 28-3-104.” 2

(Id. ¶¶ 2, 5.)

The complaint also alleges fraudulent concealment by the
Shelby County Board of Education (“School Board”), by way of
failure to act, after the School Board was put on notice of the
1

Unless otherwise noted, all record citations refer to the PageID

number.
2

Tenn. Code Ann. § 28-3-104 establishes the statute of limitations
for tort actions in Tennessee. The Court construes the complaint to allege
an intentional tort claim.

2

incident on or about April, 17, 2017, and after the School
Board informed Arnold it would conduct an investigation.
¶¶ 11-13.)

(Id.

A declaration by Earnest Lee Hayes is attached to

the complaint. 3

(ECF No. 1-1.)

Hayes claims to have witnessed

a sexual encounter between the minor child and an unnamed
Shelby County Schools employee.

(Id.)

The complaint seeks

compensatory and punitive damages in the amount of $5,000,000,
and the costs of the action.

(Compl., ECF No. 1.)

It also

seeks a preliminary injunction to prevent Defendants from
disposing of assets and destroying evidence.

(Id. 5-6.)

On May 25, 2018, United States Magistrate Judge Diane K.
Vescovo entered the Report.

(ECF No. 7.)

It recommends that

the Court sua sponte dismiss Arnold’s complaint under 28 U.S.C.
§ 1915 for lack of standing.

(Id. at 24.)

The Report explains

that:
No pro se plaintiff may sign pleadings on behalf
of another plaintiff.
Johns v. Cty. of San Diego,
114 F.3d 874, 876 (9th Cir. 1997) (“While a nonattorney may appear pro se on his own behalf, ‘[h]e
has no authority to appear as an attorney for others
than himself.’”); Bonacci v. Kindt, 868 F.2d 1442,
1443 (5th Cir. 1989).
“Similarly, 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 her parent or representative.”
[Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir.
2003)]; see Chochran v. Nelson, No. 93-3521, 1994 WL
28648, at *3 (6th Cir. Feb. 1, 1994) (“Because Virgil
3

The declaration does not state the title or position, if any, that
Hayes has. (See ECF No. 1-1.)

3

Cochran is not an attorney, he may not represent his
son in federal court.”). The Sixth Circuit considers
this issue one of lack of standing.
Oliver v.
Pogats, No. 91-1717, 1992 WL 76951, at *1 (6th Cir.
Apr. 13, 1992).
Here,
Arnold
does
not
allege
any
facts
indicating any of her personal rights were violated;
thus she is attempting to bring a claim on behalf of
her child. She does not claim to be an attorney. As
a non-attorney, she may appear pro se on her own
behalf, but she cannot appear as an attorney for her
child.
Shepherd, 313 F.3d at 970.
In addition,
although Arnold’s child was a minor when the alleged
events occurred, Arnold states in her complaint that
the child’s birthdate is September 25, 1998. (Compl.
¶ 9, ECF No. 1.) The child was nineteen years old at
the time the complaint was filed, and under Tennessee
law, competent to bring suit on her own behalf.
Tenn. Code Ann. § 1–3–113(a); see also Bender v.
Metro. Nashville Bd. of Educ., No. 13-0470, 2013 WL
3777197, at *3 (M.D. Tenn. July 18, 2013).
Thus,
Arnold lacks standing to bring this lawsuit, and it
is therefore recommended that this complaint be
dismissed for failure to state a claim.
(Id. at 23-24 (internal footnotes omitted).)
Congress enacted 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of districtcourt duties to magistrate judges.

See United States v.

Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v.
United States, 490 U.S. 858, 869-70 (1989)); see also Baker v.
Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).

For

dispositive matters, “[t]he district judge must determine de
novo any part of the magistrate judge’s disposition that has
been properly objected to.”
U.S.C. § 636(b)(1).

See Fed. R. Civ. P. 72(b)(3); 28

After reviewing the evidence, the court is
4

free to accept, reject, or modify the magistrate judge’s
proposed findings or recommendations.

28 U.S.C. § 636(b)(1).

The district court is not required to review -- under a de novo
or any other standard -- those aspects of the report and
recommendation to which no objection is made.
474 U.S. 140, 150 (1985).

Thomas v. Arn,

The district court should adopt the

magistrate judge’s findings and rulings to which no specific
objection is filed.

Id. at 151.

Arnold has not objected to the Report.
Report is warranted.

Adoption of the

See Arn, 474 U.S. at 150-51.

For the foregoing reasons, the Report is ADOPTED, and
Arnold’s complaint is DISMISSED.

So ordered this 19th day of June, 2018.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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