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Johnson v. Georgia Department of Behavioral Health and Developmental Disabilities

United States District Court, S.D. Georgia, Savannah Division

July 3, 2018

REGINALD V. JOHNSON, II, Plaintiff,
v.
GEORGIA DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL DISABILITIES, Defendant.

          REPORT AND RECOMMENDATION

         Reginald 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.

         I. JOHNSON'S LEGAL CAPACITY

         The 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.

         “A 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).

         Other 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.

         Johnson 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.[1]

         II. Ella's suitability

         Where 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.”).

         The 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.

         Those 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.

         III. Johnson's claims

         Since 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 civil rights.”).

         Johnson 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).

         The 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.”). ...


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