United States District Court, W.D. Michigan, Southern Division
DEVIN T. LESTER et al., Plaintiffs,
STATE OF MICHIGAN et al., Defendants.
L. Maloney United States District Judge.
action was filed in the name of Devin T. Lester, but the
complaint was signed by Sherry K. McKay. Ms. McKay signed the
documents on Plaintiff Lester's behalf under a durable
power of attorney. Plaintiff Lester is presently detained in
the Cass County Jail pending trial on multiple assault counts
relating to an incident on October 22, 2018.
the Prison Litigation Reform Act, Pub. L. No. 104-134, 110
Stat. 1321 (1996) (PLRA), the Court is required to dismiss
any prisoner action brought under federal law if the
complaint is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief
from a defendant immune from such relief. 28 U.S.C. §
1915A; 42 U.S.C. § 1997e(c). Ms. McKay, however, is not
a prisoner. The Court has granted Ms. McKay leave to proceed
in forma pauperis. Under 28 U.S.C. 1915(e)(2) the
Court must also dismiss any action she files as a pauper if
the complaint is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief
from a defendant immune from such relief. Applying these
standards, the Court will dismiss the complaint for failure
to state a claim.
complaint names as Defendants the State of Michigan, the Cass
County Sheriff, Shannon Kenyon, the principal victim of the
assault and mother of Bentley, and Shannon's mother and
father, Laura and Richard Kenyon, who were present at the
time of the alleged assault. Plaintiff Lester is alleged to
be the father of Bentley.
complaint alleges that Defendant Richard Kenyon committed the
assaults of Shannon for which Plaintiff Lester has been
charged. Additionally, the complaint states that Defendant
Cass County Sheriff's treatment of Lester during his
arrest and detention is cruel and unusual punishment. The
complaint does not elaborate as to the nature of the cruel
and unusual punishment that the sheriff's officers or the
sheriff inflicted upon Plaintiff beyond stating that
Plaintiff Lester was placed in segregation for seven months.
complaint seeks an order directing the state to hold the
Kenyons' property to be sold and the proceeds sent to
Plaintiff Lester. The complaint also seeks damages in the
amount of 2.5 million dollars for mental anguish resulting
from the cruel and unusual punishment inflicted upon
Plaintiff Lester by the sheriff and other officers in Cass
Failure to state a claim
complaint may be dismissed for failure to state a claim if it
fails “‘to give the defendant fair notice of what
the . . . claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). While a complaint need not contain
detailed factual allegations, a plaintiff's allegations
must include more than labels and conclusions.
Twombly, 550 U.S. at 555; Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”). The
court must determine whether the complaint contains
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 679. Although the plausibility standard is not equivalent
to a “‘probability requirement,' . . . it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 556). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]'-that the pleader
is entitled to relief.” Iqbal, 556 U.S. at 679
(quoting Fed.R.Civ.P. 8(a)(2)); see also Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding
that the Twombly/Iqbal plausibility standard applies
to dismissals of prisoner cases on initial review under 28
U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
Plaintiff McKay Lacks Standing, Authority, or a Cognizable
complaint was signed by Ms. McKay on Plaintiff Lester's
behalf under a durable power of attorney. Even assuming a
valid power of attorney existed that authorized Ms. McKay to
institute a lawsuit as agent on behalf of Plaintiff Lester,
she would not have the authority to practice law by
representing him in this lawsuit without an attorney. A party
in federal court must proceed either through a licensed
attorney or on her own behalf. 28 U.S.C. § 1654; see
also Fed. R. Civ. P. 11(a) (“Every pleading,
written motion, and other paper shall be signed by at least
one attorney of record in the attorney's individual name,
or, if the party is not represented by an attorney, shall be
signed by the party”). A power of attorney does not
authorize a non-lawyer to prosecute a case in federal court
on behalf of another person. Johns v. County of San
Diego, 114 F.3d 874, 876 (9th Cir. 1997) (affirming
dismissal of complaint with prejudice that was filed pursuant
to a general power of attorney); J.M. Huber Corp. v.
Roberts, No. 88-6160, 1989 WL 16866, at *1 (6th Cir.
Feb. 17, 1989) (notice of appeal signed by a nonlawyer
pursuant to a power of attorney ineffective to give rise to
appellate jurisdiction); Walsh v. Internal Revenue
Serv., No. 1:08-cv-1132 (W.D. Mich. Oct. 12, 2009)
(report and recommendation), adopted by 2009 WL
4261212 (W.D. Mich. Nov. 24, 2009); Kapp v. Booker,
No. Civ. A. 05-402-JMH, 2006 WL 385306, at *3 (E.D. Ky.
Feb.16, 2006). In short, Plaintiff McKay cannot present
claims in this Court on Plaintiff Lester's behalf.
Moreover, Plaintiff lacks standing to present the claims of
Plaintiff Lester on his behalf. Newsom v Norris, 888
F.2d 371, 381 (6th Cir. 1989); Raines v. Goedde, No.
92-3120, 1992 WL 188120, at *2 (6th Cir. Aug. 6, 1992). Any
claims she purports to bring on Plaintiff Lester's behalf
are properly dismissed.
were Plaintiff McKay's intent to bring a claim on her own
behalf for injuries caused to her, the allegations in the
complaint do not suffice to give rise to such a claim. She
does not allege that any of the Defendants caused her
compensable injury. For the reasons set forth above, the
Court will dismiss with prejudice any claims Plaintiff McKay
has raised against the Defendants.
respect to the claims of Plaintiff Lester, if Ms. McKay had
sufficiently stated Lester's claims, the Court would
consider providing Plaintiff Lester the opportunity to sign
the complaint on his own behalf. The ...