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2:17-cv-14227-MOB-DRG Doc # 1 Filed 12/29/17 Pg 1 of 13 Pg ID 1

UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF MICHIGAN

THOMAS KITHIER,
Case No:
Plaintiff, Hon.
v

MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION,


CHIPPEWA VALLEY SCHOOLS, ROB ROBERTS, PAUL
SIBLEY, MICHAEL FUSCO, THOMAS RASHID, JOHN E.
ROBERTS,

Jointly and Severally,

Defendants.

VEN R. JOHNSON (P39219)


CHRISTOPHER P. DESMOND (P71493)
JOHNSON LAW, PLC
Attorneys for Plaintiff
535 Griswold, Suite 2632
Detroit, Michigan 48226
(313) 324-8300/Fax: (313) 324-8301
vjohnson@venjohnsonlaw.com
cdesmond@venjohnsonlaw.com

STEVEN FISHMAN (P23049)


Attorney for Plaintiff
615 Griswold Street, Suite 1125
Detroit, Michigan 48226-3910
(313) 962-4090/Fax: (313) 962-8068
sfish6666@gmail.com

COMPLAINT AND JURY DEMAND

NOW COMES Plaintiff, THOMAS KITHIER, through his attorneys, JOHNSON LAW,

PLC and STEVEN FISHMAN and for his Complaint against the above-named defendants, states

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as follows:

JURISDICTION

1. That this action arises under the United Sates Constitution, particularly under the

provisions of the Fourteenth Amendment of the United States Constitution and under the laws of

the United States, particularly under the Civil Rights Act, Title 42 of the United States Code,

Sections 1983 and 1988.

2. That this court has jurisdiction of this cause under the provisions of Title 28 of the

United States Code, sections 1331 and 1343 and pendant jurisdiction over state claims which arise

out of the nucleus of operative facts common to Plaintiff’s federal claims.

3. That Plaintiff brings suit against each and every Defendant in both their individual

and official capacities.

4. That each and all of the acts of the Defendants set forth were done by the

Defendants under the color and pretense of the statutes, ordinances, regulations, laws, customs,

and usages of the State of Michigan, and by virtue of and under the authority of the Defendants’

employment.

5. The amount in controversy exceeds $75,000.00, exclusive of Plaintiff’s claims for

costs, attorney fees, interest and punitive damages.

PARTIES

6. Plaintiff THOMAS KITHIER is or was a citizen and resident of the State of

Michigan and of the United States and is entitled to all rights, privileges, and immunities accorded

to all citizens of the United States.

7. That Defendant MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION

(“MHSAA”), located in East Lansing, Michigan, is a voluntary association of member schools,

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which join MHSAA through their boards of education. MHSAA then promulgates rules applicable

to high school athletics. For purposes of this cause of action, MHSAA was, at all times, a state

actor.

8. Defendant CHIPPEWA VALLEY SCHOOLS is a school district with its

headquarters in Clinton Township, Michigan.

9. Defendant ROB ROBERTS, at all times relevant to this action, is and was the

superintendent of Chippewa Valley Schools.

10. Defendant PAUL SIBLEY, at all times relevant to this action, is and was the

principal of Dakota High School in Macomb, Michigan.

11. Defendant MICHAEL FUSCO, at all times relevant to this action, is and was the

athletic director of Dakota High School in Macomb, Michigan.

12. Defendant THOMAS RASHID, at all times relevant to this action, is and was the

Associate Director of MHSAA.

13. Defendant JOHN ROBERTS, at all times relevant to this action, is and was the

Executive Director of MHSAA.

COMMON FACTUAL ALLEGATIONS

14. Plaintiff hereby re-alleges each and every allegation in paragraphs 1 through 13 of

this Complaint as if fully stated herein.

15. Plaintiff was born on June 29, 1999 and is currently eighteen years old.

16. Prior to August, 2017, Plaintiff was a student at Dakota High School (“Dakota”) in

the Chippewa Valley School District.

17. During the 2015-2016 school year (Plaintiff’s sophomore year in high school), his

parents decided to move out of the Chippewa Valley School District to enable Plaintiff to escape

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the negative and inadequate academic and social environment at Dakota and to have a greater

opportunity to excel academically in a different school district.

18. The academic problems at Dakota included but were not limited to the following:

a. Teachers in numerous classrooms do not have control over their classrooms,


which creates a chaotic and substandard learning environment;

b. The academic culture at Dakota was unfavorable to Plaintiff;

c. The curriculum at Dakota did not include the academic offerings which are
necessary to adequately prepare Plaintiff for college and the future;

d. More specifically, Dakota did not offer a math course that Plaintiff needed or
did it offer classes related to media production, a field that Plaintiff is interested
in pursuing in the future;

e. Teachers at Dakota did not return tests in a timely fashion;

f. Academics were not highly prioritized in the athletic department as displayed


in pulling Plaintiff out of class to discuss basketball;

g. Other student-athletes were leaving Dakota, thus substantiating the negative


experiences Plaintiff was having at the school.

19. In addition to academics, the athletic staff bullied Plaintiff when: (a) the basketball

coach Paul Tocco sent inappropriate texts to him regarding his decision to leave Macomb Dakota;

and (b) other members of the athletic staff behaved inappropriately and unprofessionally toward

him.

20. On or about August 4, 2017, in accordance with MHSAA rules and after careful

consideration and deliberation by his family of academic programs and a culture that was best

suited for Plaintiff, Plaintiff moved his residence from Macomb, MI to 7836 Ridge Valley Drive,

Apt. 7, Clarkston, MI, and enrolled in the Clarkston Community School system.

21. During the summer of 2017, Plaintiff’s mother had telephone conversations with

Gary Kaul, the principal at Clarkston High School (“Clarkston”) to discuss the math and media

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production classes offered at Clarkston. Mr. Kaul and Plaintiff’s mother also discussed whether

Plaintiff would be able to participate in athletics at Clarkston.

22. Plaintiff’s mother was informed by Mr. Kaul that based on conversations between

Mr. Kaul, Clarkston athletic director Jeff Kosin, and the Michigan High School Athletic

Association (“MHSAA”), Plaintiff would be eligible to participate in athletics at Clarkston as long

as MHSAA rules were followed and the 2017-2018 Educational Transfer form was signed.

23. During the summer of 2017, the Dakota athletic department learned that Plaintiff

was transferring out of the Chippewa Valley School District. That information was clearly shared

with Tom Rashid, the MHSAA Associate Director, who in late July stated during a phone

conversation with Clarkston Athletic Director Jeff Kosin: “If Dakota had any balls, they would not

sign that form.”

24. During the month of August 2017, when Plaintiff was already a resident of

Clarkston, Plaintiff’s parents contacted Dakota representatives at least eleven times regarding the

signing of the transfer form, which had already been filled out by the parents and Clarkston.

Dakota did not respond.

25. On August 16, 2017, Plaintiff’s mother spoke with Dakota athletic director Mike

Fusco, who informed her that Dakota would not sign the transfer form. Mr. Fusco also made it a

point to emphasize that he had a 30-year close, personal relationship with Associate Director

Rashid, implying that the MHSAA would declare Plaintiff ineligible for athletics at Clarkston.

26. On August 17, 2017, Plaintiff’s mother spoke with Mr. Rashid, who informed her

that Plaintiff was ineligible to participate in athletics at Clarkston, and that the only way Plaintiff

could be eligible to play basketball would be if he played on the Dakota team. During that

conversation, Mr. Rashid acknowledged that Plaintiff already lived in Clarkston, but

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recommended that Plaintiff drive from Clarkston to Dakota every day.

27. On or about September 1, 2017, two weeks after Mr. Rashid had already informed

Plaintiff’s mother that Plaintiff would be ineligible for athletics at Clarkston, MHSAA Executive

Director John Roberts sent Clarkston a letter indicating that Dakota had made a complaint that

Plaintiff’s transfer was athletically motivated, and that the MHSAA would conduct an inquiry into

the allegations to determine Plaintiff’s eligibility at Clarkston.

28. Dakota’s complaint contained the false allegation that Clarkston coach Dan Fife,

Michigan State assistant basketball coach Dane Fife, and others had unduly influenced Plaintiff to

transfer from Dakota to Clarkston. Dakota’s complaint also implied that others, including NBA

assistant coach John Loyer and Michigan State head basketball coach Tom Izzo had also had a

part in the undue influence.

29. In fact, prior to Plaintiff’s move to the city of Clarkston and enrollment at the high

school, neither Plaintiff nor his parents had any contact with any coach at Clarkston or with the

coaching staff at Michigan State regarding basketball and/or Plaintiff transferring to Clarkston.

30. In fact, there was not, and has never been any undue influence exercised by any

party related to Plaintiff’s transfer to and enrollment at Clarkston.

31. In fact, given the totality of the evidence, any reasonable person would conclude

that Plaintiff moved his physical residence to Clarkston for academic reasons and that he is much

happier in his current academic environment.

32. The above evidence notwithstanding, the MHSAA has unfairly and unreasonably

ruled that he is ineligible for 180 days, which encompasses the entire basketball season, thereby

punishing Plaintiff unjustly, and causing him irreparable harm. It is further clear that Plaintiff is

the victim of an incoherent enforcement of rules that do not apply to other student-athletes.

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COUNT I

VIOLATION OF PLAINTIFF’S RIGHT TO SUBSTANTIVE DUE PROCESS UNDER


THE FOURTEENTH AMENDMENT- 42 USC 1983

16. Plaintiff hereby re-alleges each and every allegation contained in paragraphs 1

through INSERT of this Complaint as if fully stated herein.

17. That the action and omission of acts by the Defendants under 42 USC Section 1983

was unreasonable and performed knowingly, deliberately, intentionally, maliciously, with gross

negligence, callousness, and reckless indifference to Plaintiff’s rights by reason of which Plaintiff

is entitled to injunctive relief as well as compensatory and punitive damages.

18. That the conduct of the Defendants, MHSAA, CHIPPEWA VALLEY SCHOOLS,

ROBERTS, SIBLEY, FUSCO, RASHID and ROBERTS, deprived Plaintiff KITHIER, of his

clearly established rights, privileges and immunities in violation of the Fourteenth Amendment of

the Constitution of the United States, and of 42 USC Section 1983.

19. That the conduct of the Defendants, MHSAA, CHIPPEWA VALLEY SCHOOLS,

ROBERTS, SIBLEY, FUSCO, RASHID and ROBERTS, individually, and/or in their official

capacities, violated Plaintiff’s right to substantive due process under the Fourteenth Amendment

to the United States Constitution in the following ways:

a. Failing, absent any good cause, to sign the transfer order that MHSAA required
to be signed in order for Plaintiff to be eligible to join the basketball team at
Clarkston High School;

b. Promulgating facially unconstitutional rules and regulations, including but not


limited to Regulation 1, § 9(E)(7) of the MHSAA handbook, which provides
that a student may be deemed ineligible for athletics if “The student seeks to
participate with teammates or coaches with whom he/she participated in

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nonschool competition during the preceding 12 months;”

c. Applying rules and regulations, including but not limited to Regulation 1, §


9(E)(7), to Plaintiff in an unconstitutional manner by falsely determining
without any competent evidence that the purpose of Plaintiff’s transfer was not
academic in nature;

d. Any and all other breaches as they become known throughout the course of this
litigation.

20. That as a direct and proximate result of the aforementioned conduct and omissions

of Defendants MHSAA, CHIPPEWA VALLEY SCHOOLS, ROBERTS, SIBLEY, FUSCO,

RASHID and ROBERTS, individually, and/or in their official capacities, violated Plaintiff

Kithier’s right to substantive due process under the Fourteenth Amendment to the United States

Constitution.

WHEREFORE, Plaintiff requests the following relief:

a. Injunctive relief in the form of an order that Plaintiff Kithier be permitted to


join the Clarkston High School basketball team and be granted full eligibility
beginning January 15, 2018;

b. Compensatory and punitive damages; and

c. Any and all other damages otherwise recoverable under USC Section 1983 and
Section 1988.

COUNT II

CIVIL CONSPIRACY

21. Plaintiff hereby re-alleges each and every allegation contained in paragraphs 1

through INSERT of this Complaint as if fully stated herein.

22. Pursuant to the Fourteenth Amendment to the United States Constitution, Plaintiff

Kithier’s substantive due process rights included the right to fully participate in the academic and

extracurricular activities at Clarkston High School, in which Plaintiff was and is an enrolled

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student.

23. Defendants MHSAA, CHIPPEWA VALLEY SCHOOLS, ROBERTS, SIBLEY,

FUSCO, RASHID and ROBERTS did conspire with one another with the purpose of violating

Plaintiff Kithier’s substantive due process rights under the Fourteenth Amendment in the following

ways:

a. MHSAA, through Defendant RASHID, encouraging officials at Dakota High


School with whom he had pre-existing relationships, such as Defendant
FUSCO to not sign the transfer order that would have permitted Plaintiff
KITHIER to join the Clarkston High School basketball team;

b. Defendants RASHID and ROBERTS conspiring to deem Plaintiff KITHIER to


be in violation of Regulation 1, § 9(E)(7) despite a lack of evidence relating to
the substance of that regulation and despite knowing that no adequate
investigation had been conducted;

c. Defendants SIBLEY and FUSCO conspiring to not sign the transfer order that
would have permitted Plaintiff KITHIER to join the Clarkston High School
basketball team despite knowing that they lacked any good cause for failing to
sign said order;

d. Any and all other improper and unconstitutional agreements between these
parties as learned of during the course of this litigation.

24. That as a direct and proximate result of the aforementioned conduct of Defendants

MHSAA, CHIPPEWA VALLEY SCHOOLS, ROBERTS, SIBLEY, FUSCO, RASHID and

ROBERTS, individually, and/or in their official capacities, violated Plaintiff Kithier’s right to

substantive due process under the Fourteenth Amendment to the United States Constitution.

WHEREFORE, Plaintiff requests the following relief:

a. Injunctive relief in the form of an order that Plaintiff Kithier be permitted to


join the Clarkston High School basketball team and be granted full eligibility
beginning January 15, 2018;

b. Compensatory and punitive damages; and

c. Any and all other damages otherwise recoverable under USC Section 1983 and
Section 1988.

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COUNT III

DEFAMATION

25. Plaintiff hereby re-alleges each and every allegation contained in paragraphs 1

through 24 of this Complaint as if fully stated herein.

26. That during the course of the events at issue in this litigation, Defendants MHSAA,

CHIPPEWA VALLEY SCHOOLS, ROBERTS, SIBLEY, FUSCO, RASHID and ROBERTS,

individually and in their official capacities, did issue public statements regarding Plaintiff

KITHIER that proved to be false, and that Defendants knew to be false at the time the statements

were issued, including:

a. Statements by MHSAA, and its employees and agents including Defendants


RASHID and ROBERTS that Plaintiff KITHIER was transferring to Clarkston
High School not for academic purposes, but for the purpose of joining a former
teammate, Foster Loyer, who also was a member of the Clarkston High School
basketball team;

b. Statements by Defendant Chippewa Valley Schools at public meetings, through


its superintendent, Defendant ROBERTS, that Plaintiff KITHIER was
transferring to Clarkston High School not for academic purposes, but for
primarily athletic purposes in violation of MHSAA rules and regulations

c. Any and all other false statements that were made with malice or negligence
regarding Plaintiff KITHIER and the purpose of his transfer to Clarkston High
School.

27. That the conduct of the above-named Defendants was intended to degrade,

humiliate, and incite hatred or contempt of Plaintiff KITHIER and amounted to defamation under

the laws of the State of Michigan.

28. That as a direct and proximate result of the aforementioned conduct of Defendants,

in their individual or official capacities, Plaintiff KITHIER, suffered a loss of reputation for which

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he is entitled to both compensatory and punitive damages.

COUNT IV

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

29. Plaintiff hereby re-alleges each and every allegation contained in paragraphs 1

through 28 of this Complaint as if fully stated herein.

30. The individual defendants conduct as set forth above was intentional, extreme,

outrageous and of such character as not to be tolerated by a civilized society.

31. Defendants conduct was for an ulterior motive or purpose of defaming, punishing

and depriving Plaintiff of his rights under the Fourteenth Amendment of the United States

Constitution.

32. Defendants conduct resulted in emotional distress to Plaintiff KITHIER.

33. As the direct and proximate result of the above cited actions which constituted

intentional infliction of emotional distress under the laws of the State of Michigan, Plaintiff

KITHIER will continue to incur damage in the future, including but not limited to:

a. Mental anguish;

b. Fright and shock;

c. Denial of social pleasure and enjoyments;

d. Embarrassment, humiliation or mortification;

e. Punitive damages; and

f. Any and all injuries or damages learned through the course of discovery.

WHEREFORE, Plaintiff THOMAS KITHIER respectfully requests this Honorable Court

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enter Judgment in his favor and against Defendants jointly and severally, in the form of the

requested injunctive relief and in the form of a damages award in an amount in excess of $75,000,

pursuant to 42 U.S.C. § 1983, exclusive of costs, interest, attorney fees, and punitive damages.

Respectfully submitted,

JOHNSON LAW, PLC


By: _/s/ Ven R. Johnson______________
VEN R. JOHNSON (P39219)
CHRISTOPHER P. DESMOND (P71493)
Attorneys for Plaintiff
Buhl Building
535 Griswold Street, Suite 2632
Detroit, MI 48226
313.324.8300
vjohnson@venjohnsonlaw.com
cdesmond@venjohnsonlaw.com

/s/ Steven Fishman


STEVEN FISHMAN (P23049)
Attorney for Plaintiff
615 Griswold Street, Suite 1125
Detroit, Michigan 48226-3910
(313) 962-4090/Fax: (313) 962-8068
sfish6666@gmail.com
Dated: December 29, 2017

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DEMAND FOR JURY TRIAL

Plaintiff, THOMAS KITHIER, by and through his attorneys, JOHNSON LAW, PLC,

hereby requests a trial by jury in this matter.

Respectfully submitted,

JOHNSON LAW, PLC


By: _/s/ Ven R. Johnson______________
VEN R. JOHNSON (P39219)
CHRISTOPHER P. DESMOND (P71493)
Attorneys for Plaintiff
Buhl Building
535 Griswold Street, Suite 2632
Detroit, MI 48226
313.324.8300
vjohnson@venjohnsonlaw.com
cdesmond@venjohnsonlaw.com

/s/ Steven Fishman


STEVEN FISHMAN (P23049)
Attorney for Plaintiff
615 Griswold Street, Suite 1125
Detroit, Michigan 48226-3910
(313) 962-4090/Fax: (313) 962-8068
sfish6666@gmail.com
Dated: December 29, 2017

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