In Re Jackson Lockdown/MCO Cases

TABLE OF CONTENTS

I. The Procedural Background 872

A. Consolidation of Cases 872

B. The Motions to Dismiss 872

II. The Facts as Alleged 873

III. The 42 U.S.C. § 1983 Claim 875

A. MCO Motion: State Action 875

B. State Motion 877

1. Personal Involvement 878

2. Constitutionality of Post-Riot Conditions 878

IV. The 42 U.S.C. § 1985(3) Claim 878

A. Elements of a § 1985(3) Claim 878

*872 TABLE OF CONTENTS

B. Intra-corporate Conspiracy Exception 879

C. Class-based Animus Requirement 880

1. Legislative History 880

2. Sixth Circuit Case Law 881

3. McDonald’s Allegations 883

V. The 42 U.S.C. § 1985(2) Claim 885

VI. The 42 U.S.C. § 1986 Claim 886

VII. The Pendent State Claims 887

A. Intentional Infliction of Emotional Distress (MCO) 887

B. Breach of Duty Under Employment Contract (MCO) 888

C. Negligence (State Defendants) 888

VIII. Res Judicata 888

IX. The Eleventh Amendment 889

X. Miscellaneous 889

A. More Definite Statement 889

B. Qualified Immunity 889

XI. Order 889

OPINION AND ORDER ON MOTIONS TO DISMISS

I. THE PROCEDURAL BACKGROUND

A. Consolidation of Cases

On May 22, 1981 and again on May 25, 1981 the State Prison of Southern Michigan (SPSM) was the subject of prisoner rioting. 1 Beginning in June 1981, individual prisoners started filing pro per complaints against the Michigan Corrections Organization (MCO), the labor union for the prison guards, and its president, Gerald Fryt, alleging that MCO instigated the riots by taking over SPSM on the morning of May 22 with the intent of confining its prisoners to their cells indefinitely (a “lockdown”) and otherwise violating their constitutional rights. Some of these cases were filed initially in federal court; others were filed in state court and removed by MCO. In some, but not all of the cases the warden of SPSM, Barry Mintzes, and the director of the Michigan Department of Corrections, Perry Johnson, were also named as defendants.

In accordance with a resolution adopted by the judges of the Eastern District of Michigan on February 8,1982, these various pro per actions were consolidated for pretrial purposes. See Manual For Complex Litigation § 5.00 at 160-62 (5th Ed.1982). Counsel were appointed for all the plaintiffs who desired representation and in June 1982 amended complaints containing essentially identical allegations were filed in all but two cases. MCO, Fryt, Mintzes, and Johnson were named as defendants in addition to a number of individual prison guards, most of whom have not been served to date. The two complaints which were not amended were removed from the consolidation and one new case, filed pro per but closely following the standard amended complaint, was added leaving a total of twenty-two cases. See Pre-Trial Order No. 4, filed March 11, 1983. Lead counsel were appointed for plaintiffs to file consolidated motions and briefs on behalf of all plaintiffs addressing issues common to all the cases. I Pre-Trial Order No. 3, filed January 26, 1983; see Manual for Complex Litigation § 1.92.

B. The Motions to Dismiss

Now before the Court are motions to dismiss the amended complaints, Fed.R. *873 Civ.P. 12(b)(6), filed by MCO and Fryt (collectively “MCO”) and by Mintzes and Johnson (collectively “state defendants”). The motions attack the sufficiency of every claim raised on a variety of grounds.

For the purposes of these motions, a single complaint, McDonald v. Michigan Corrections Organization, Civil No. 81-40192, will be taken as the paradigm of all of the complaints. Therefore, to the extent that the other twenty-one complaints have identical allegations to McDonald, their claims will state or fail to state a claim to the same extent as McDonald.

McDonald makes nine claims (unless otherwise indicated, the claim is made as to all defendants):

1. The actions and omissions of defendants, and the totality of conditions at SPSM, subjected him to cruel and unusual punishment, in violation of the Eighth Amendment and 42 U.S.C. § 1983.

2. Defendants’ actions infringed upon his First Amendment rights of speech, religion and privacy, his Fourth Amendment right to be free from unreasonable search and seizure, his Sixth Amendment right of access to counsel and the courts, and his Fourteenth Amendment rights to procedural and substantive due process in violation of 42 U.S.C. § 1983.

3. Defendants’ actions constituted a conspiracy to interfere with his access to the courts in violation of 42 U.S.C. § 1985(2).

4. Defendants’ actions constituted a conspiracy to deprive him of civil rights as a member of a class of inmates at SPSM in violation of 42 U.S.C. § 1985(3).

5. MCO conspired with persons acting under color of state law to deny him his civil rights in violation of 42 U.S.C. § 1983.

6. Defendants’ actions prior to and on May 22, 1981 showed a gross neglect and refusal to take action to protect him from deprivation of his civil rights in violation of 42 U.S.C. § 1986.

7. MCO, Fryt and the individual guard defendants acted with a purposeful and wanton disregard for his health and safety, thus intentionally inflicting emotional distress.

8. MCO, Fryt and the individual guard defendants breached their contract of employment with the state, of which he was a third party beneficiary.

9. Mintzes and Johnson were negligent in failing to protect his health, safety and right to exercise fundamental constitutional rights.

Appended to McDonald’s complaint are sixteen exhibits which are incorporated by reference. These exhibits consist of state documents largely describing the events of May 22, 1981 and thereafter at SPSM; most are authored by prison officials including Mintzes. The detailed information in these exhibits is treated as part of the factual allegations of the complaint, Fed.R. Civ.P. 10(c). Therefore, the complaint presents a rich factual predicate upon which to test the legal sufficiency of the claims.

II. THE FACTS AS ALLEGED

Summarizing the McDonald complaint and exhibits, the following are the essential factual allegations.

During the month of May 1981, and particularly during the MCO spring conference on May 16, MCO members discussed and planned to take some kind of illegal action at SPSM. On May 21 Fryt and MCO Vice-President, defendant Michael Huey (Huey) presented Mintzes with a copy of a resolution passed at the May 16 conference. (The contents of the resolution are not alleged in this complaint nor disclosed in the exhibits). Fryt communicated to Mintzes that an unauthorized and illegal job action would take place. A memo from Mintzes to Johnson dated June 1, 1981 indicates that Mintzes was not told what kind of action would be taken or when it would occur. Prior to May 22 Mintzes and Johnson “were further made aware of the activities of the MCO and its officers” by Robert Brown, the Dep *874 uty Director of the Department of Corrections. What specific information was conveyed by Brown is not described.

Friday, May 22, preceded the Memorial Day weekend. Shortly after arriving at SPSM around 8:00 a.m., Deputy Warden Scott was informed that Fryt, Huey and defendant David Bokanowski (Bokanowski), another MCO officer, had asked to see him. Scott proceeded to the Warden’s Office, where they were waiting; they asked him whether he would “lock down” the institution. Fryt indicated he was concerned that a recent “shakedown” of prisoners had been inadequate and complained that the custodial staff was too small to run the prison properly, a recurring MCO complaint. All three MCO officers stated they were tired of unproductive meetings and that they were going to proceed to lock down the prison at 10:00 a.m. that morning.

Scott called Mintzes at home around 8:30 a.m. and advised him of MCO’s threat. . Between 8:30 a.m. and 10:00 a.m. Fryt, Huey and Bokanowski used telephones in the warden’s office, apparently without opposition from Scott and the other administrators present, to call in off-duty MCO members in preparation for the lockdown. Beginning at 10:00 a.m. MCO members on guard throughout the SPSM Central Complex refused to obey their superiors’ orders to release prisoners from their cells at the scheduled times and told their superiors they were only taking orders from Fryt. MCO members at the entrance gate also refused to obey orders and barred visitors from entering SPSM. Between 10:00 and 10:30 a.m. Mintzes arrived at SPSM. After being briefed by Scott, he met with Fryt who admitted that MCO had taken over administrative control of the institution. Fryt was warned of the risk of a prisoner riot as the word spread of the lockdown; Fryt indicated it was a risk MCO was willing to assume. Shortly after noon prisoners in cell block three acquired cell keys and began unlocking cells. McDonald says that defendant Arnold “took his block and cell keys and threw them on a desk, making them clearly available to prisoners”; however, it is not clear if Arnold’s act is alleged to have precipitated the events in cell block three or if Arnold was acting alone or in concert with other MCO members.

As soon as word of the prisoner take-over in cell block three reached the warden’s office, Fryt and the other MCO officers permitted Mintzes and Scott to resume control of the institution. Although emergency mobilization measures were taken, numerous fires broke out amid widespread rioting. McDonald says he suffered serious injuries as he assisted prison authorities in putting out fires and rescuing fellow inmates. Other plaintiffs describe similar injuries.

By May 23 prison authorities had SPSM back under control. McDonald says that he was instrumental, as a liaison between the administration and the inmates, in persuading prisoners to return to their cells. During the next several days McDonald met on many occasions with administrators and inmates to negotiate an agreement to prevent further disturbances. McDonald urged a meeting between prisoners and Johnson, predicting that further disturbances would likely occur without such a meeting. McDonald says that MCO members made a concerted attempt to disrupt these negotiations and successfully prevented the proposed meeting with Johnson; however, no specific details as to how MCO disrupted the negotiating process are described.

On May 26 2 rioting again broke out at SPSM, at both the central and northside complex, marked by wholesale burning and looting, and continued through May 27. McDonald does not say that MCO members had any specific role in instigating this *875 second riot, apart from their interference with the negotiating process. On May 26 defendant Jeffrey Schoendorf (a sergeant at SPSM and thus apparently not an MCO member) (Schoendorf) filed a misconduct report accusing McDonald of “inciting to riot”, apparently based on McDonald’s prediction that further disturbances would occur if there was no meeting with Johnson. Following ah administrative hearing on June 19, 1981, McDonald was found not guilty of the charge.

Order was again restored on May 27 and strict controls were imposed by Mintzes and Johnson, which are described as a “lock-down” by plaintiffs. As a result of these officially imposed controls, McDonald claims he was denied access to the law library, adequate yard exercise, sanitary food, access to shower and personal hygiene facilities, religious services and rehabilitation programs. These claims are common to all the plaintiffs. McDonald also raises individual claims relating to loss of specific personal property and destruction of personal papers by Schoendorf and unnamed MCO members to punish him for his active role as a prisoner spokesperson.

III. THE 42 U.S.C. § 1983 CLAIMS

A. MCO Motion: State Action

MCO and Fryt, in his capacity as union president, move to dismiss all of McDonald’s claims against them under 42 U.S.C. § 1983 for failure to allege the requisite state action as to them. State action is a necessary element because all of the substantive violations alleged under § 1983 arise under the Fourteenth Amendment (and under the First, Fourth and Sixth Amendments as applied to the states through the Fourteenth Amendment). A finding of state action will also satisfy the less-stringent statutory requirement of § 1983 that defendants acted “under color of state law”. Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 102 S.Ct. 2744, 2750, 73 L.Ed.2d 482, 494 (1982).

MCO contends that McDonald has failed to allege the requisite state action as to it and Fryt, in his capacity as union president, because the union is solely a private party, not a state actor. McDonald responds that MCO conspired with state actors and that a private party who has conspired with state actors may be liable under § 1983, relying on Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) and Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). MCO replies that Adickes and Dennis have been severely limited, if not overruled sub silentio by Lugar, supra, which created, it says, a new two-part test under which state action will be found as to a private party only when a private party has “jointly participated” with a state actor and the actions of the state actor are pursuant to official state policy or law. Because the state actors with which it allegedly conspired were the rebellious guards, who clearly were acting contrary to official state policy, MCO reasons that there was no state action under Lugar. 3

MCO’s interpretation of Lugar is not without support. A recent law review note suggests that Lugar may have substantially modified the doctrine set out in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that action taken by state officials made possible by the authority given by the state is state action, even if that action is contrary to state law or policy.

*876 “Lugar may require plaintiffs to show in all cases the existence of a relevant state policy and the involvement of state actors. Lugar would then be inconsistent with the ‘abuse of authority’ doctrine set out in Monroe v. Pape ....

Alternatively, the two-step Lugar analysis may apply only where the defendant is a private party. If the defendant were himself a state actor, it would be unnecessary to examine whether he was acting pursuant to a state policy; Monroe v. Pape would govern, and the result would be a finding of state action. If the defendant were not a state actor .. [and] the court determined that the private party defendant was indeed a joint participant [with a state actor], the court would then determine whether the state official was acting pursuant to a state policy. Only if the court determined that there was a relevant state policy in play — as in Lugar — would it find state action.

The latter interpretation of Lugar preserves the holding of Monroe but still narrows the scope of section 1983. After Lugar, a plaintiff cannot bring a section 1983 suit against a private party who instigates official misbehavior, though under Monroe the right to sue the misbehaving official remains.”

The Supreme Court, 1981 Term, 96 Harv.L.Rev. 62, 244-46 (1982).

This interpretation misreads Lugar and ignores the explicitly limited nature of the Lugar decision:

“The holding today, as the above analysis makes clear, is limited to the particular context of prejudgment attachment.”

457 U.S. at 939 n. 21, 102 S.Ct. at 2755 n. 21, 73 L.Ed.2d at 492 n. 21. Lugar was a § 1983 action challenging a private party’s use of a state prejudgment attachment procedure which provided for issuance by the clerk of the court of a writ of attachment upon the filing of an ex parte petition. No state official was named as a defendant and the only state actors involved were the clerk who issued the writ and the county sheriff who executed it. The complaint was based on alternative theories: (a): that the defendants improperly invoked the attachment procedure as a matter of state law, or (b) that the attachment statute itself was constitutionally defective.

The Supreme Court held that the first theory did not state a § 1983 claim because there was no state action; the conduct by defendants of which plaintiff complained “could not be ascribed to any governmental decision”, rather defendants had acted “contrary to the relevant policy articulated by the state”. Id. at 940, 102 S.Ct. at 2756, 73 L.Ed.2d at 497. The merely ministerial roles played by the clerk and sheriff did not convert defendants’ improper use of the attachment procedure into state action. However, the Supreme Court found that the second theory did state a good claim because it challenged the state’s enactment of an allegedly unconstitutional procedure for attaching property prior to judgment, which was executed by state officials pursuant to that statutory scheme. Id. at 941, 102 S.Ct. at 2756, 73 L.Ed.2d at 498.

The Lugar “two-part test” was not intended as a sweeping rule to alter the well-developed existing law on state action which has “articulated a number of different factors or tests in different contexts” and which involves a “necessarily fact-bound inquiry”. Id. at 939, 102 S.Ct. at 2755-56, 73 L.Ed.2d at 496-97. Rather the two-part test was developed to chart a course between prior cases involving the specific issue of state action in prejudgment attachment procedures, holding on the one hand state action to be present where state officials aided the creditor in securing the disputed property, e.g. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), and finding on the other hand no state action where no state officials participated in executing the levy, Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). The Supreme Court found it necessary to add the first factor, the challenge to the state statute itself, because the merely ministerial acts by the clerk and sheriff, although sufficient to distinguish Flagg Brothers, were not enough standing alone to comprise state action. Without this additional require *877 ment, every state court plaintiff who invoked the action of state officials to enforce an order or judgment could be a potential § 1983 defendant on the mere claim that the order or judgment was improperly issued as a matter of state law. However, the Supreme Court was careful to note that this two-part analysis is unnecessary where state action is based on the active intentional involvement of a state official in the allegedly unconstitutional act:

“these two principles ... collapse into each other when the claim of a constitutional deprivation is directed against a party whose official character is such as to lend the weight of the state to his decisions. See Monroe v. Pape.”

Id. 457 U.S. at 937, 102 S.Ct. at 2754, 73 L.Ed.2d at 495. In contrast, the Lugar defendants did not “have the authority of state officials to put the weight of the state behind their private decision, i.e. this case does not fall within the abuse of authority doctrine recognized in Monroe v. Pape”. Id. at 940, 102 S.Ct. at 2756, 73 L.Ed.2d at 497.

Lugar does not undermine the holding of Adickes, which is much more analogous to the case at bar. One of the claims in Adickes was that defendant’s employee, a restaurant manager, conspired with a local policeman to arrest plaintiff for vagrancy because she had attempted to integrate a segregated lunch counter. 4 The policeman’s involvement created state action and rendered the private party liable under § 1983 “whether or not the actions of the police were officially authorized or lawful”. 398 U.S. at 152, 90 S.Ct. at 1605. The Supreme Court in Lugar, citing Adickes with approval, noted that whether or not the policeman acted consistently with the vagrancy statute, or with any other official state policy, was irrelevant; “joint action of the private party and the police officer was sufficient”. 457 U.S. at 932 n. 15, 102 S.Ct. at 2751 n. 15, 73 L.Ed.2d at 492 n. 15. Thus a private party who violates another’s civil rights through the knowing assistance of one clothed with state authority is liable under the Fourteenth Amendment. See Dennis, supra (private litigants liable under § 1983 for allegedly corrupting a state court judge to rule in their favor, although clearly judicial actions taken for corrupt purposes are contrary to state law and policy).

Here MCO is alleged to have conspired with state officials — prison guards — to restrict plaintiff’s liberty and punish him for exercising his constitutional rights. Although the acts of the guards in furtherance of the conspiracy were contrary to state law, those acts were possible only due to the power conferred on the guards by the state. Indeed it is difficult to imagine persons more subject to the powers of the state than prisoners. At the instigation of MCO, the guards usurped this power to themselves to accomplish their private ends. Thus, in the words of Lugar, MCO and its officers did “have the authority of state officials to put the weight of the state behind their private decision”. 457 U.S. at 940, 102 S.Ct. at 2756, 73 L.Ed.2d at 497. MCO therefore is equally liable. 5

B. State Motion

McDonald’s § 1988 claims against the state defendants appear to fall into two *878 categories. The first category relates to MCO’s actions on May 22 and the resulting riots; McDonald would hold the state defendants liable under § 1983 for gross negligence in permitting the MCO takeover and the riots. See First Amended Complaint ¶¶ 1, 22, 25, 36, 37 and 49. The second category relates to alleged constitutional deprivations directly imposed by the state defendants following the second riot from May 26, 1981 forward such as denial of access to the law library, adequate yard exercise, sanitary food, adequate shower and personal hygiene facilities, religious services, and rehabilitative programs. First Amended Complaint, ¶¶ 52-55. These deprivations were caused by the increased security measures following the riots and a significant curtailment of the time prisoners were permitted to be out of their cells, a condition referred to by the parties as a “lockdown”, though different from the situation created by the MCO takeover since officially imposed by the prison authorities for administrative reasons and of longer duration.

1. Personal Involvement

The state defendants have moved to dismiss for failure to allege their personal involvement in the alleged constitutional deprivations. See Hays v. Jefferson Coun ty, 668 F.2d 869 (6th Cir.1982). As for the alleged failure to prevent MCO’s actions, McDonald has specifically alleged that both Mintzes and Johnson were aware of MCO’s planned action but failed to take adequate precautions. 6 First Amended Complaint ¶¶21, 22, 25 and 49. McDonald has also alleged that the state defendants had a constitutional duty to prevent MCO and its members from taking the actions they did on May 22. These allegations state sufficient personal involvement as to the first category. As for the second category, there can be no doubt that by nature of their positions both Mintzes and Johnson were personally involved in the decisions to impose the various post-riot conditions of confinement at SPSM of which McDonald complains. Accordingly, this argument for dismissal is without merit.

2. Constitutionality of Post-Riot Conditions

The state defendants also argue, as to the post-riot conditions, that as a matter of law these conditions were constitutional because they were imposed in good faith to restore and maintain order after a state of emergency. This argument is likewise without merit. First, as evidenced by the state defendants’ extensive factual recitation in support of this argument, any determination of whether the imposition of the post-riot conditions was constitutionally justified would require an inquiry far beyond the scope of a 12(b)(6) motion. Second, this very issue has already been decided by Judge Stewart Newblatt in Walker, supra (see note 2) (appeal pending). Judge Newblatt concluded, following a seven week trial, that some of the post-riot conditions passed constitutional muster while others did not. As parties to Walker, the state defendants are clearly barred from arguing now that none of the conditions imposed violated constitutional rights. Thus their motion must be denied, although they may be able to raise a collateral estoppel defense as to the conditions found constitutional in Walker. See Part VIII, infra.

IV. THE 42 U.S.C. § 1985(3) CLAIM

A. Elements of a § 1985(3) Claim

McDonald alleges that the actions of defendants on May 22, 1981 and thereafter *879 were “invidious acts to punish plaintiff individually, and as a member of a class of inmates at the SPSM, and to interfere with his access to counsel, legal material, legal process and the courts, which constitutes a conspiracy to interfere with plaintiffs civil rights” in violation of 42 U.S.C. § 1985(3). Although this count refers to all “defendants” generally, the complaint contains no factual allegations to support a § 1985(3) claim against the state defendants. Accordingly, it will be assumed for the purposes of these motions that the § 1985(3) claim relates only to MCO and its alleged co-conspirators. See Part X(A), infra.

42 U.S.C. § 1985(3) reads, in pertinent parts: 7

“If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.”

In Griffin v. Breckenridge, 403 U.S. 88, 102-3, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971), the Supreme Court defined four requisite elements to a claim under this section of § 1985(3): (1) a conspiracy of two or more persons, (2) a racial or other class-based, invidiously discriminatory animus behind the conspirators’ actions, (3) an act in furtherance of the conspiracy, and (4) consequential injury to person or property or deprivation of a right or privilege of a citizen of the United States. Unlike § 1983, state action is not required for a § 1985(3) claim. Id. MCO contends that McDonald fails to properly allege the first two elements as to it.

B. Intra-corporate Conspiracy Exception

MCO argues that allegations that it conspired with its own officers and members cannot state a § 1985(3) claim because of the intracorporate conspiracy rule, i.e. that a corporation cannot conspire with its own agents because legally a corporation and its agents are but a single person. It is apparently the law in this circuit that the intracorporate rule applies to § 1985(3) actions. Fallís v. Dunbar, 386 F.Supp. 1117, 1121 (N.D.Ohio 1974), aff’d per curiam, 532 F.2d 1061 (6th Cir.1975); Schroeder v. Dayton-Hudson Corp., 448 F.Supp. 910, 915 (E.D.Mich.1977); but see An-Ti Chai v. Michigan Technological University, 493 F.Supp. 1137, 1164-67 (W.D.Mich.1980) (limiting Fallis to its facts). 8 Application of the intra-corporate rule to § 1985(3) has been criticized, see Note, Intra-corporate Conspiracies Under 42 U.S.C. § 1985(c), 92 Harv.L.Rev. 470 (1978), and was specifically rejected by the Third Circuit, sitting en banc, in Novotny v. Great American Federal Savings & Loan Assoc., 584 F.2d 1235, 1256-59 (3rd Cir.1978), rev’d on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). In reviewing Novotny, the Supreme Court expressly assumed without deciding that the directors of a single corporation could legally conspire within the meaning of § 1985(3). 442 U.S: at 372 n. 11, 99 S.Ct. at 2349 n. 11.

*880 However, even assuming that the intracorporate rule applies under § 1985(3), MCO has failed to cite any authority that the rule should be extended to an unincorporated union. Although unions may function in the collective bargaining context with some of the attributes of a corporation, as voluntary unincorporated associations they do not have a separate legal existence as do corporations. See Labor and Labor Relations, 48 Am.Jur.2d § 48 at 109. Indeed conspiracy doctrine has historically been applied to concerted action by union members. Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349 (1921). The only authority cited by MCO for its assertion that its members and it are a “single person” are Fed.R. Civ.P. 17(b) and Lamphere Schools v. Lamphere Federation of Teachers, 400 Mich. 104,