UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

TONY DEWAYNE BEARD, JR.,

a legally incapacitated person, 

by and through JOHNETTE FORD, 

his legal guardian,

Plaintiff, Civil Action No. 14-13465

 Honorable Nancy G. Edmunds

v. Magistrate Judge Elizabeth A. Stafford

 

ERIC HAWKINS, et al., 

Defendants. 

__________________________________/

REPORT AND RECOMMENDATION TO DENY

DEFENDANTS’ MOTIONS TO DISMISS [14, 24, 29] 

I. INTRODUCTION

Johnette Ford (“Ford”) commenced this action on behalf of her adult 

son Tony Dewayne Beard, Jr. (“Beard”), alleging the City of Southfield (the 

“City”) and fourteen current or former members of the Southfield Police 

Department (the “Officers”; collectively “Defendants”) violated his 

constitutional rights and state law. [1]. The Honorable Nancy G. Edmunds 

referred this case to the undersigned to resolve all pretrial matters pursuant 

to 28 U.S.C. § 636(b)(1)(A) and (B). Before the Court are three motions to 

dismiss, one filed by the City [14] and two filed by the Officers [24, 29]. For 

the following reasons, the Court RECOMMENDS that all three motions [14,

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24, 29] be DENIED.

II. BACKGROUND

This 42 U.S.C. § 1983 civil rights action arises out of Beard’s

September 6, 2011 arrest and alleged beating by the Officers. Ford, a nonattorney, is Beard’s mother and has been his legal guardian since 2002. 

[15-1, Pg ID 115-17]. On September 5, 2014 – one day before the statute 

of limitations expired – Ford filed this action without legal representation on 

Beard’s behalf, alleging that Defendants violated his constitutional rights. 

[1]. On October 14, 2014, attorney Johnny L. Hawkins filed a notice of 

appearance on behalf of Beard. 

On December 16, 2014, Beard moved for leave to file an amended 

complaint. [12]. On January 6, 2015, the Court granted the motion in part,

allowing Beard to cure defects of the original complaint, and Beard filed the 

amended complaint the same day. [17; 18]. The City and the Officers 

responded to Beard’s complaint by filing three motions to dismiss brought 

pursuant to Federal Rule of Civil Procedure 12(b)(1), which all present an 

argument that Ford lacked standing to bring the suit and that the Court, 

therefore, lacks subject matter jurisdiction. [14; 24; 29]. Beard has filed 

responses, and Defendants have replied. [15; 19; 33; 35]. Because all 

three motions make the same argument, the Court has considered them

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together and recommends that they all be denied.

III. ANALYSIS

Defendants argue the Court lacks subject matter jurisdiction of this 

action because the complaint only alleges violations of Beard’s 

constitutional rights, and that Ford therefore “lacked standing to maintain 

an action on behalf of Beard without counsel.” [14, Pg ID 92-93; 29, Pg ID 

301]. Defendants’ motions are misplaced and should be denied because 

Beard has standing and needs his guardian to access the Court for him; 

Ford’s failure to secure legal counsel initially did not defeat standing or 

subject matter jurisdiction; and granting Defendants’ motions to dismiss 

would undermine the aim of protecting incompetent litigants like Beard.

A. Beard has standing to bring this action and Ford has 

authority to file it on his behalf.

To bring a suit in federal court, a plaintiff must establish Article III 

standing, which essentially requires showing that he or she suffered an 

injury as a result of the defendant’s conduct. Loren v. Blue Cross & Blue

Shield of Mich., 505 F.3d 598, 607 (6th Cir. 2007). If a plaintiff fails to 

establish standing, the Court must dismiss the action for lack of subject 

matter jurisdiction. Id. Here, Beard is alleged to have suffered injuries as a 

result of Defendants’ conduct; he has standing.

However, Beard is legally incapacitated, and therefore “lacks the 

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capacity to bring suit for himself.” Berrios v. New York City Hous. Auth., 

564 F.3d 130, 134 (2d Cir. 2009). As Beard’s legal guardian, Ford may sue 

on his behalf; his access to the court is dependent upon him having a 

suitable representative to protect his interest. Fed. R. Civ. P. 17(c)(1)(A); 

Berrios, 564 F.3d at 134-35.

Defendants do not challenge Beard’s standing or Ford’s authority to 

sue on his behalf under Rule 17. They complain that Ford initially filed the 

lawsuit without legal representation, but that now-remedied deficiency did 

not undermine the Court’s subject matter jurisdiction or support a dismissal 

of the complaint.

B. Ford’s failure to secure legal counsel initially did not defeat 

standing or subject matter jurisdiction.

Pursuant to 28 U.S.C. § 1654, litigants in federal court generally have 

the right to prosecute or defend their cases without legal representation. 

However, that section does not permit parties to proceed without legal 

representation “where interests other than their own are at stake.” 

Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002). In Shepherd, the 

girlfriend of the decedent filed a § 1983 claim on behalf of the minor child 

she shared with the decedent. Id. at 966. The Sixth Circuit upheld the 

dismissal of § 1983 claims because she did not secure legal 

representation. Id. at 970-71. 

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Defendants cite Shepherd for the propositions that Ford does not 

have standing and that the Court therefore lacks subject jurisdiction. 

However, Shepherd did not rely on standing and jurisdiction to uphold the 

dismissal; neither “standing” nor “jurisdiction” is even mentioned in the 

court’s analysis of the matter. Id. The district court dismissed the § 1983

claim for failure to prosecute under Federal Rule Civil Procedure 41

because the plaintiffs did not obtain counsel despite being given two years 

to do so. Id. at 970-71. The Sixth Circuit upheld the dismissal on the same 

basis. Id. at 971.

1

 

The substantial time afforded the Shepherd plaintiffs to find counsel 

before their case was dismissed undermines Defendants’ argument that, 

under Shepherd, Ford’s filing of the lawsuit without counsel defeated 

standing and must be dismissed for lack of subject matter jurisdiction. If 

fact, contrary to Defendants’ request for immediate dismissal, courts 

typically give litigants an opportunity to obtain counsel, when required, 

before their cases are dismissed. For example, in Cheung v. Youth 

1 Defendants also misconstrue Cochran v. Nelson, 16 F.3d 1218, 

1994 WL 28648 (6th Cir. 1994), where standing was addressed only with 

respect to claims that the plaintiff brought on his own behalf. Id. at *1-*3. 

The district court had disallowed the plaintiff’s attempt to legally represent 

his son, but that was not described as a standing issue. Id. at *1-*2. 

Thompson v. Mohammed, No. 13-12388, 2013 WL 4747537 (E.D. Mich. 

Sept. 4, 2013) is likewise inapposite, as the plaintiff was not the adult 

child’s legal guardian. 

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Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 62 (2d Cir.1990), an opinion 

cited with approval in Shepherd, the court found that a non-attorney could 

not represent his minor daughter, but it remanded the case “to give Cheung 

an opportunity to retain counsel or to request the appointment of counsel.” 

More recently, the Second Circuit reversed the dismissal of a case brought 

by a non-attorney uncle of the incompetent plaintiff and instructed that, on 

remand, the district court should not dismiss “the action without affording 

such guardian the opportunity to retain counsel or to seek representation 

from a pro bono attorney or agency.” Berrwilios, 564 F.3d at 135. See also 

Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007) (“Because the 

Malones may not proceed pro se on those claims, we will grant the 

Malones sixty days to obtain counsel to represent the interests of the 

estate.”).

In this case, the Court does not even have to offer Ford time to obtain 

an attorney to represent Beard; she has already done so and Beard’s 

attorney has already amended the complaint to cure its previous 

deficiencies. 

C. Granting Defendants’ motions to dismiss would be contrary 

to the aim of protecting Beard’s interest.

If the motions to dismiss were granted, Beard would be barred from 

refiling his complaint by the statute of limitations; he would be denied his 

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day in court. That result would be contrary to the aim of requiring legal 

counsel in a case like this. Courts require minors and incompetents to be 

represented by trained legal counsel rather than ill-equipped lay persons in 

order to protect their interests and prevent abuse. Cheung, 906 F.2d at 61;

Zanecki v. Health Alliance Plan of Detroit, 576 Fed. Appx. 594, 595 (6th 

Cir. 2014). Beard now has legal counsel to protect his interests, and 

dismissing his complaint would significantly prejudice him, a result that is 

directly contrary to the intent of the authority upon which Defendants’ rely.

IV. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that 

Defendants’ motions to dismiss [14, 24, 29] be DENIED.

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: April 10, 2015

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 

72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

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638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on April 10, 2015.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

 

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