United States District Court, S.D. Georgia, Savannah Division
REGINALD V. JOHNSON, II, Plaintiff,
GEORGIA DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL DISABILITIES, Defendant.
REPORT AND RECOMMENDATION
Johnson, acting through his mother, Ella Johnson
(“Ella”), has filed a Complaint seeking monetary
and injunctive relief arising from the withdrawal (or threat
of withdrawal) of financial support by the Georgia Department
of Behavioral Health and Developmental Disabilities (the
“Agency”). Doc. 1 at 2; doc. 10 at 3. Ella
responded to the Court's request for further information
on Johnson's legal capacity, her suitability to act on
his behalf, and the nature of the claim. Docs. 7 & 8.
JOHNSON'S LEGAL CAPACITY
Complaint requested that Ella “be allowed to speak and
represent on [Johnson's] behalf to the court.” Doc.
1 at 1. Based on the Complaint's allegations, it appeared
that Johnson was proposing to act pro se, but with
his mother facilitating disability-related communication
difficulties. Doc. 4 at 4. Supplemental financial information
cast doubt on whether Johnson could act pro se, for
he listed “child support” among the sources of
his income. Doc. 6 at 1; doc. 7 at 2. In order to clarify
Johnson's legal capacity, and to determine whether Ella
was a suitable representative in the event that Johnson was
not sui juris, the Court required Ella to provide
further information. Doc. 7 at 5.
minor or an incompetent person who does not have a duly
appointed representative may sue by a next friend or by a
guardian ad litem. The court must appoint a guardian ad litem
-- or issue another appropriate order -- to protect a minor
or incompetent person who is unrepresented in an
action.” Fed.R.Civ.P. 17(c)(2). There is limited
judicial authority concerning the application of that
provision, however. See Sam M. ex rel. Elliott v.
Carcieri, 608 F.3d 77, 90 (1st Cir. 2010). The Eleventh
Circuit has never permitted a non-attorney parent to act
pro se on behalf of their child. See FuQua v.
Massey, 615 Fed.Appx. 611 at 612 (11th Cir. 2015)
(“The right to appear pro se . . . is limited
to parties conducting ‘their own cases,' and does
not extend to non-attorney parties representing the interests
of others. Consequently, we have held that ‘parents who
are not attorneys may not bring a pro se action on
their child's behalf.'” (quoting Devine v.
Indian River Cnty. Sch. Bd., 121 F.3d 576, 581 (11th
Cir. 1997), overruled in part on other grounds by
Winkelman ex rel. Winkelman v. Parma City Sch. Dist.,
550 U.S. 516, 535 (2007)); see also Black v. Colvin,
2015 WL 6082112, at * 1 (S.D. Ala. Sept. 17, 2015) (rejecting
pro se parent's request to act on disabled
child's behalf, noting that the Eleventh Circuit has not
sanctioned such representation, child was not a minor,
proposed representative was not child's appointed
guardian, and there was insufficient proof of disability).
courts, while recognizing the general prohibition, have found
it is not “ironclad.” Adams ex rel. D.J.W. v.
Astrue, 659 F.3d 1297, 1300 (10th Cir. 2011).
Particularly in the context of suits concerning the denial or
withdrawal of public benefits, courts have recognized the
practical necessity of permitting non-attorney parents to
proceed on behalf of their child. See, Id. at 1300
(citing Harris v. Apfel, 209 F.3d 413, 417 (5th Cir.
2000) (permitting non-attorney parent to proceed on behalf of
minor child in appeal of denial of Social Security Disability
benefits)). In such cases the circumstances of the claim
(i.e. the practical reality that low-income children
will often be unable to secure representation to protect
their rights and the alignment of the
parent-representative's interest with the child's)
support an exception to the general prohibition on parental
representation. Id. Given the breadth of Rule
17(c)'s sanction of “another appropriate order,
” the Rules too seem to support the possible
recognition of a non-attorney parent's representation of
their child without the assistance of counsel.
turned 18 years old on November 27, 2017. See doc.
8-1 at 1 (listing Johnson's birthdate as November 27,
1999). A letter from his physician, attached to Ella's
declaration, describes him as autistic, “nonverbal,
” and “totally dependent upon his care giver to
meet all his daily living needs and activities.”
Id. at 7. Based on that assessment, Johnson,
although not a minor during the pendency of this action,
appears to be legally incompetent.
parents are permitted to proceed on their children's
behalf, the child's “best interests are of
paramount importance. . . .” Sam M. ex rel.
Elliott, 608 F.3d at 85. Ella's background indicates
that she is well suited to act as Johnson's
representative. She is his natural mother, has a
bachelor's degree, and is employed “processing
disability claims by contacting claimant, medical sources,
third parties, field office, scheduling exams, bookmarking
medical, getting work, etc.” Doc. 8-1 at 2. She also
disavows any conflict between her interests and
Johnson's. Id. at 3 (asserting “my
interests are my son's interests.”).
Court might find those qualities dispositive in determining
her suitability, but for a potential conflict of interest.
The Complaint alleges that the benefits at issue are to be
(or have been) terminated “due to perceived abuses of
the program.” Doc. 1 at 2. Ella has supplemented that
allegation, explaining that the Agency proposes to
discontinue benefits because of an unapproved “family
hire.” Doc. 8-1 at 5. Specifically, Ella's sister,
Carolyn Jackson, “was being paid for more hours than
the program would have permitted for standard family
hire.” Id. Ella also concedes that the Agency
“states that [she], as plaintiff's representative .
. . was in violation despite documentation presented.”
Id. at 6.
facts raise a significant doubt about Ella's suitability.
The “unapproved family hire” at issue is
Ella's sister, who has lived with Ella and Johnson
“all of the plaintiff's life.” Doc. 8-1 at 5.
That fact, coupled with the Agency's allegation that Ella
was complicit in the impropriety, casts doubt on whether she
could pursue Johnson's interests in retaining his
benefits impartially and zealously. For example, she might be
less inclined to accept a resolution that does not protect
her sister's income (and given that her sister lives with
her, it seems possible that some portion of that income might
go to Ella, albeit mediately). Given the potential conflict
between Ella's and Johnson's interests, further
inquiry into the possibility of appointing a guardian ad
litem is warranted. But because Johnson's Complaint
presents a possibly viable claim, the Court will permit Ella
to provisionally serve as his guardian ad litem. As
discussed below, the Complaint is sufficient to be served on
the Agency, and pending its response, the Court may revisit
the question of whether counsel, or a non-conflicted
guardian, should be appointed.
Johnson is proceeding in forma pauperis, the Court
has an obligation to screen his Complaint to determine
whether it states a claim on which relief may be granted or
seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii).
Johnson's Complaint seeks both injunctive relief, in the
form of a “Writ of Mandamus” directing the
“reinstatement” of his disability benefits, ) and
“2.25 million dollars for punitive damages.”
Id. at 2-3. There is also a suggestion that even the
threatened cessation of benefits has caused some injury.
See Id. (“Plaintiff has suffered loss of
community access which has affected his quality of life and
has suffered regression in behaviors. Even with
reinstatement, the difficulty of getting plaintiff back to
his prior level of functioning will be work and will come at
the cost of where plaintiff could have been if allowed his
does not identify any legal theory that supports his claims.
He cites several sections of the Code of Federal Regulations,
see doc. 1 at 2 (citing 42 C.F.R. §§
431.200, 441.740), and asserts that “the [Fourteenth]
Amendment of the [United States] Constitution is also brought
into question.” Id. There is no indication
that the cited regulations provide an individual right of
action. A violation of the protections of the Fourteenth
Amendment, however, might support a claim under 42 U.S.C.
§ 1983 (providing a private cause of action against any
person, acting under color of state law, who deprives an
individual of “any rights, privileges, or immunities
secured by the Constitution and laws” of the United
States.). See, e.g., William v. Horton, 2016 WL
6582682 at * 12 (N.D.Ga. Nov. 7, 2016) (summarizing cases
where a § 1983 cause of action was found involving the
denial of Medicaid benefits).
first defect in the claims, as plead, is that the Agency is
not a proper defendant. As a state agency, it is immune from
suit under the Constitution's Eleventh Amendment.
See, e.g., Williams v. Bd. of Regents of Univ. Sys. of
Ga., 477 F.3d 1282, 1301 (11th Cir. 2007) (“Under
most circumstances, the Eleventh Amendment bars suits against
states and state entities by their citizens.”).