Cheung v. Youth Orchestra Foundation of Buffalo, Inc.

• Decision Date: 21 June 1990
• Docket Number: No. 1114,D,1114
• Citation: 906 F.2d 59
• Parties: Tse-Ming CHEUNG, M.D., Plaintiff-Appellant, v. YOUTH ORCHESTRA FOUNDATION OF BUFFALO, INC., Anne Luchsinger, John Potts, and Ansgarius Aylward, Defendants-Appellees. ocket 89-9233.
• Court: U.S. Court of Appeals — Second Circuit

Page 59

906 F.2d 59

16 Fed.R.Serv.3d 1293

Tse-Ming CHEUNG, M.D., Plaintiff-Appellant, v. YOUTH ORCHESTRA FOUNDATION OF BUFFALO, INC., Anne

Luchsinger, John Potts, and Ansgarius Aylward,

Defendants-Appellees.

No. 1114, Docket 89-9233.

United States Court of Appeals, Second Circuit.

Argued May 1, 1990.

Decided June 21, 1990.

Tse-Ming Cheung, Hamburg, N.Y., pro se.

Roy L. Wixson, Buffalo, N.Y., for defendants-appellees.

Before LUMBARD, FEINBERG and WINTER, Circuit Judges.

WINTER, Circuit Judge:

Plaintiff Tse-Ming Cheung, M.D., appeals from Judge Elfvin's dismissal of his pro se complaint. Although the complaint is solely in his name, the litigation is brought on behalf of his minor daughter under various civil rights statutes, including 42 U.S.C. Sec. 1981 (1982). The underlying dispute arose when a youth orchestra gave Cheung's daughter a seat in the first violin section that Cheung and his daughter regarded as inappropriate. The complaint alleges that the seating was based on her Chinese-American national origin. Cheung, as the plaintiff, seeks to bring this complaint pro se. We hold that he may not do so and remand to give him an opportunity to retain a lawyer.

BACKGROUND

Our statement of the factual background in this case is based on the pleadings and the record developed before the lower court's jurisdictional ruling. Plaintiff sues on behalf of his daughter, Elaine Siu-Kwok Cheung, who was sixteen years old at the time of the filing of the complaint. Defendant the Youth Orchestra Foundation of Buffalo, Inc. (the "Foundation") sponsors two student orchestras, the Greater Buffalo Youth Orchestra (the "Orchestra") and a preparatory orchestra. ¹ They appear to receive some public support. In June of 1987, Elaine auditioned for admission to the Orchestra and was assigned to the first violin section, seventh seat, for the 1987-88 season. Her seating assignment was arrived at by alphabetical order.

In 1988, Elaine again auditioned for the Orchestra and was accepted for the first violin section. Some weeks prior to the first rehearsal of the 1988-89 Orchestra season the manager of the Orchestra advised Cheung that the first four seats in the first violin section had been decided by audition results and that the rest of the first violin players would be seated in reverse alphabetical order. The Orchestra claims to have adopted the reverse alphabetical order for this season so that members with names late in the alphabet would not always get the least desirable seats. At the first rehearsal in September of 1988, Elaine was placed in seat fourteen out of either fourteen or fifteen seats because of the reverse alphabetical seating order. It appears that the odd-numbered seats in the first violin section are nearest to the audience. In protest, Cheung and his daughter left the rehearsal. She has not participated since.

Plaintiff initiated this action against the defendants alleging racial discrimination against Elaine. Cheung alleged in his complaint Discovery in the case proceeded. It disclosed facts seemingly at odds with any racial purpose in the seating arrangement. For example, seats one and three of the first violin section were determined by audition and accorded to Asian-Americans. Substantial numbers of other Asian-Americans also participated in the Orchestra without incident or signs of discrimination. So far as we can tell, discovery revealed nothing to support Cheung's claim, although his suspicions of stereotypical discrimination were further aroused when he learned that a member of the Orchestra's board had been born in Vienna in 1938 and lived there during the Nazi rule.

that the reverse alphabetical seating, which resulted in Elaine getting an even-numbered seat, was adopted to reduce the number of Asian-Americans near the audience. In November of 1988, the district court denied Cheung's request for a preliminary injunction to compel Elaine's placement in the seventh seat or better in the first violin section. Cheung v. Youth Orchestra Found., No. CIV-88-984E, 1988 WL 125193 (W.D.N.Y. Nov. 17, 1988) (order denying preliminary injunction).

In late 1989, the parties had pending discovery motions and cross-motions for sanctions. On December 6, 1989, the district court dismissed the complaint sua sponte for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(h)(3). Cheung appealed from that dismissal.

DISCUSSION

We do not address the jurisdictional issue because we conclude that Cheung may not bring this action pro se. We therefore remand for further proceedings to give Cheung an opportunity to hire a lawyer.

A litigant in federal court has a right to act as his or her own counsel. See 28 U.S.C. Sec. 1654 (1982) ("In all courts of the United States the parties may plead and conduct their own cases personally or by counsel...."). See generally O'Reilly v. New York Times Co., 692 F.2d 863, 867-70 (2d Cir.1982) (discussing statutory right to self-representation in civil cases). ² The statutory right to proceed pro se reflects a respect for the choice of an individual citizen to plead his or her own cause. See id. at 867 & n. 5. The right to conduct one's own litigation "is a right of high standing, not simply a practice to be honored or dishonored by a court depending on its...