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THOMAS KITHIER,
Case No:
Plaintiff, Hon.
v
Defendants.
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,
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
3. That Plaintiff brings suit against each and every Defendant in both their individual
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.
PARTIES
Michigan and of the United States and is entitled to all rights, privileges, and immunities accorded
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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.
9. Defendant ROB ROBERTS, at all times relevant to this action, is and was the
10. Defendant PAUL SIBLEY, at all times relevant to this action, is and was the
11. Defendant MICHAEL FUSCO, at all times relevant to this action, is and was the
12. Defendant THOMAS RASHID, at all times relevant to this action, is and was the
13. Defendant JOHN ROBERTS, at all times relevant to this action, is and was the
14. Plaintiff hereby re-alleges each and every allegation in paragraphs 1 through 13 of
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
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
18. The academic problems at Dakota included but were not limited to the following:
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;
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
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
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
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.
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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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
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
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
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
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
16. Plaintiff hereby re-alleges each and every allegation contained in paragraphs 1
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
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
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
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;
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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
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.
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
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.
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:
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
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.
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
26. That during the course of the events at issue in this litigation, Defendants MHSAA,
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
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
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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COUNT IV
29. Plaintiff hereby re-alleges each and every allegation contained in paragraphs 1
30. The individual defendants conduct as set forth above was intentional, extreme,
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.
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;
f. Any and all injuries or damages learned through the course of discovery.
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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,
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Plaintiff, THOMAS KITHIER, by and through his attorneys, JOHNSON LAW, PLC,
Respectfully submitted,
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