United States of America v. One Parcel of Property Located at 9607 Lee Road 72, Waverly, Lee County, Alabama et al

Filing 105

OPINION AND ORDER: The court appoints Honorable Karen Mastin Laneaux, Law Office of Sandra Lewis, PC, P. O. Box 686, Montgomery, Alabama 36101-0686, to monitor the legal competency of claimant Broderick Zellers as further set out in order; Plaintiff United States of America shall pay the fees and expenses of the monitor as further set out in order. Signed by Honorable Judge Myron H. Thompson on 4/26/2013. (jg, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
v.
)
)
ONE PARCEL OF PROPERTY
)
LOCATED AT 9607 LEE ROAD
)
72, WAVERLY, LEE COUNTY,
)
ALABAMA, WITH ALL
)
APPURTENANCES AND
)
IMPROVEMENTS THEREON,
)
(Tax Map No.
)
43-06-07-26-0-000-026.002), )
)
and
)
)
ONE PARCEL OF PROPERTY
)
LOCATED AT 8895 LEE ROAD
)
72, WAVERLY, LEE COUNTY,
)
ALABAMA, WITH ALL
)
APPURTENANCES AND
)
IMPROVEMENTS THEREON,
)
(Tax Map No.
)
43-06-07-25-0-000-014.001), )
)
Defendants.
)

CIVIL ACTION NO.
3:11cv937-MHT
(WO)

OPINION AND ORDER
The cause is before the court on the questions of
claimant Broderick Zellers’s mental competency and the

necessity of appointing a guardian ad litem.

Based on

all the evidence, including that presented at the hearing
held on April 3, 2013, the court concludes that Zellers
has the current capacity to proceed in this litigation.
However, because the court also finds a substantial risk
that Zellers will decompensate during the length of this
litigation, the court will appoint a ‘monitor’ for the
narrow purposes of observing Zellers throughout the life
of this forfeiture action and of reporting to the court
any marked changes in his mental health.

I. BACKGROUND
Plaintiff United States of America filed for civil
forfeiture of certain parcels of property in Lee County,
Alabama.

Zellers and three of his siblings filed a claim

to the parcel of property located at 8895 Lee Road 72.
He and his siblings are represented by Attorney Bruce
Maddox.

The government moved for summary judgment, and

2

the claimants responded with a brief opposing summary
judgment.
The

opposition

brief

and

accompanying

exhibits

painted a picture of Zellers’s mental health that caused
this

court

example,

to

his

question

sister

his

Yolanda

legal

competency.

Zellers

stated

For

that

his

“ability to comprehend legal issues is limited to nonexistent.”

Yolanda Zellers Aff. (Doc. No. 56). Ex. 6.

Letters from Zellers’s mental-health treatment providers
show that he had been in treatment for schizophrenia on
and off for the past 25 years and that he had been
hospitalized

“for

an

acute

decompensation

depression” within the past year.
Moon (Doc. No. 56), Ex. 8.
the

court’s

concerns,

with

Letter from Brenda

In light of this evidence and
the

parties

psychological evaluation was needed.

agreed

that

a

By agreement of the

parties, the court appointed Dr. Karl Kirkland to perform
the evaluation and prepare a report of his findings.
United States v. One Parcel Property Located at 9607 Lee

3

Road 72, Waverly, Lee County, Ala., ____ F.Supp.2d ____,
____,

2012 WL 5877972, at *2 (M.D. Ala. 2012) (Thompson,

J.).
Dr. Kirkland met with Zellers on January 11, 2013.
He administered a clinical and forensic interview, a
mental-status exam, an achievement test, and a test to
inventory Zellers’s legal knowledge.

Zellers reported

that he joined the military at age 18 and was assigned to
work

in

the

boiler

room

of

large

ships;

that

his

shipmates slipped him the hallucinogenic drug LSD during
this

time

without

his

knowledge;

that

he

began

experiencing “psychedelic trips” while in the boiler room
of these large ships and was hospitalized psychiatrically
as

a

result;

and

that

he

was

first

paranoid schizophrenia at this time.

diagnosed

with

Dr. Kirkland

diagnosed Zellers with paranoid schizophrenia, a history
of

cocaine

abuse

(in

Stress Disorder (PTSD).

remission),

and

Post

Traumatic

He explained that, when Zellers

is compliant with the taking of the medicines he has been

4

prescribed, Zellers has sufficient control over these
mental

illnesses

such

that

he

can

participate in legal proceedings.

understand

and

Dr. Kirkland noted,

however, that the day before he met with Zellers, Zellers
was released from a two-week psychiatric hospitalization.
The fact that Zellers was clear and oriented at the time
of the evaluation was thus a result of fortuitous timing.
Dr. Kirkland found that Zellers’s competency “is very
unpredictable and unstable.”

Eval. (Doc. No. 98) at 8.

He

“has

noted

that

Zellers

been

hospitalized

approximately once a quarter for four times per year in
the [Veteran’s Administration] system on average for a 23

week

hospitalization.”

Id.

at

6.

He

therefore

concluded that any evaluation of Zellers’s competency
must “occur contemporaneous with an actual hearing on the
day of a hearing.”

Id. at 8.

The court convened a telephone conference with both
parties to discuss Dr. Kirkland’s report.
agreed

the

report

left

the

5

question

All parties
of

Zellers’s

competency unresolved.

The court expressed concern that

having Dr. Kirkland evaluate Zellers’s competency on the
day of trial (and before any pretrial hearing) would not
satisfactorily protect Zellers’s interests in this case.
Though

such

an

approach

might

be

sufficient

if

the

competency issue were limited to a specific point in
time,

here

Zellers

must

be

competent

to

voice

his

interests and communicate his decisions throughout the
life of the forfeiture action, not just at trial or at a
hearing but out of court and in private conferences with
this attorney as well.

The parties agreed to hold a

competency hearing, at which Dr. Kirkland could explain
his findings more fully.
At the hearing, Dr. Kirkland explained that he could
not

be

sure

whether

Zellers

would

remain

throughout the course of the litigation.

competent
He further

explained that Zellers’s competency hinges on whether he
is properly taking his medicines.

Whether he is properly

taking his medicines in turn depends on environmental

6

stressors.

It

responsibility

on

also
the

requires

part

of

exactitude

Zellers,

as

he

and
takes

approximately 12 different medicines, which are needed to
maintain a delicate chemical balancing.

Dr. Kirkland

also testified that manifestations of Zellers’s mental
illness could cause him to stop taking his medicines.
Dr. Kirkland outlined a clear pattern that has taken
shape over the past 25-to-30 years: once every three-tofour

months,

Zellers

gradually

stops

taking

his

medication, his mental health deteriorates, his paranoid
schizophrenia ramps up, he is hospitalized for two-tothree weeks, his condition stabilizes, and he returns
home.

He

noted

that

Zellers’s

family

members

have

learned to identify the signs of this decompensation when
it

begins:

agitation,

insomnia,

auditory-commanding hallucinations,
Kirkland

opined

that

someone

withdrawn

behavior,

and paranoia.

appointed

to

Dr.

monitor

Zellers’s mental health could also detect these outward

7

manifestations of his mental illness and that this person
would not need to be a health professional.

II. DISCUSSION
In a previous order, this court explained that the
civil legal-competency determination depends on whether
“Zellers is mentally impaired to the extent that he is
unable

to

understand

litigation.”

United

the

nature

States

v.

and

effect

of

this

One

Parcel

Property

Located at 9607 Lee Road 72, Waverly, Lee County, Ala.,
____ F.Supp.2d ____, ____,

2012 WL 5877972, at *2 (M.D.

Ala. 2012) (Thompson, J.).
Dr.

Kirkland

found

that

Zellers

was

alert

and

oriented to his surroundings, both on the day of the
evaluation and on the day of his competency hearing; he
further found that Zellers has a basic understanding of
the forfeiture action, its consequences, and his role as
a claimant to the property that the government seeks.
Based on Dr. Kirkland’s report and testimony, the court

8

concludes that Zellers is not currently suffering from a
mental disease such that he is unable to understand the
nature and effect of this litigation.

As Zellers is

currently competent to proceed in this litigation, it is
important to safeguard Zellers’s freedom to determine the
course of the litigation as he sees fit.

Indeed, just as

it would be impermissible, if Zellers were incompetent,
to litigate his claim without appointing a guardian ad
litem for him, it would be impermissible, if he were
competent, to appoint a guardian ad litem for him and
thus take away his right to direct this litigation as he
sees fit.

Therefore, the court will not appoint a

guardian ad litem at this time.
That decision, however, does not put the matter to
rest.

As Dr. Kirkland explained, Zellers’s competency is

unstable.

There

have

been

many

times

throughout

Zellers’s life when he was not competent to participate
in civil litigation, and it appears certain there will be
more such times in the future.

9

Though Dr. Kirkland’s

suggestion

of

having

a

mental-health

professional

evaluate Zellers immediately before trial and hearings is
not

fully

satisfactory,

the

court

accepts

the

basic

suggestion that Zellers’s competency must be monitored
throughout

the

litigation.

The

risk

that

Zellers’s

mental health will backslide during the life of this case
is too high to decide otherwise.

As Dr. Kirkland found,

Zellers is hospitalized approximately four times a year,
once every three to four months.

This pattern has been

ongoing for the past 25-to-30 years, and there is no
reason to expect it to cease with the onset of this case.
The Federal Rules of Civil Procedure provide that a
court “must appoint a guardian ad litem–-or issue another
appropriate order–-to protect... [an] incompetent person
who is unrepresented in an action.”
17(c)(2) (emphasis added).

Fed. R. Civ. P.

This subsection gives the

court “broad power to enter any order for the protection
of the ... incompetent.”
&

Proc.

Civ.

§

1570

Wright & Miller, 6A Fed. Prac.

(3d

ed.

10

1998).

After

careful

consideration, the court has determined that the wisest
course of action is to appoint a ‘monitor’ to observe
Zellers’s legal competency throughout this litigation.
The role of this monitor will be limited.
monitor

will

opportunity

meet

to

with

learn

Zellers

Zellers’s

litigation and desired outcome.

at

the

position

The

earliest

as

to

the

Following this initial

meeting, the monitor will visit Zellers at least once a
month to determine the status of Zellers’s mental health.
The monitor will speak with at least two of Zellers’s
immediate family members at least once a month to inquire
whether they have observed any signs that Zellers is
deteriorating.

The monitor will confer on a frequent

basis with Zellers’s attorney to discuss whether the
attorney has observed that Zeller’s’ mental health is
declining.
proceedings.

The

monitor

will

attend

all

court

If the monitor finds any indication that

Zellers is not taking his medication or that he is
decompensating, the monitor shall file a status report

11

with the court so stating.

If the court determines that

Zellers has decompensated to the point of incompetency,
the monitor may then take on the role of guardian ad
litem.

The monitor is not authorized to adopt this role

unless and until there is a court finding that Zellers is
not competent to proceed.
Zellers’s attorney has offered to serve as monitor.
While the court has no doubt that Zellers’s attorney
would fill this role to the best of his ability, it would
not be appropriate for the attorney to wear both hats in
this situation.

If Zellers becomes incompetent during

the course of this litigation, the monitor will be in the
best position to take on the role of guardian ad litem.
Because Zellers’s attorney also represents three other
claimants to this same parcel of property, whose best
interests may conflict with Zellers, this would present
a direct conflict that is best avoided.
Finally, because plaintiff United States of America
has agreed to pay the fees and expenses of the monitor,

12

the court need not address how such fees and expenses
would be paid in the absence of such an agreement.
***
Accordingly, it is ORDERED as follows:
(1)

The

court

appoints

Honorable

Karen

Mastin

Laneaux, Law Office of Sandra Lewis, PC, P. O. Box 686,
Montgomery, Alabama 36101-0686, to monitor the legal
competency of claimant Broderick Zellers.
(2) The duties of the monitor include, but are not
limited, to the following: (a) the monitor shall meet
with claimant Zellers immediately to discern his desired
outcome for this litigation (b), following this initial
meeting, the monitor shall visit claimant Zellers at
least once a month to observe his mental health; (c) the
monitor shall speak with at least two members of claimant
Zellers’s immediate family at least once a month to ask
if family members have observed that his mental health is
declining; (d) the monitor shall confer on a frequent
basis with Zellers’s attorney to discuss whether the

13

attorney has observed that Zeller’s’ mental health is
declining;

(e)

the

monitor

shall

attend

all

court

proceedings; and (f), if at any time the monitor finds
that

Zellers’s

mental

health

is

deteriorating,

the

monitor shall file a status report with the court so
stating.
(3) The monitor is not to adopt the role of guardian
ad litem.
(4) Plaintiff United States of America shall pay the
fees and expenses of the monitor.

The monitor shall

contact forthwith counsel for plaintiff United States of
America to make formal arrangements for the payment of
the monitor’s fees and expenses.
DONE, this the 26th day of April, 2013.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE