United States of America v. One Parcel of Property Located at 9607 Lee Road 72, Waverly, Lee County, Alabama et al
OPINION AND ORDER as follows: (1) Dr. Karl Kirkland is appointed to perform a psychological evaluation of claimant Broderick Zellers. The United States is to bear the cost of Dr. Kirkland's time and expenses. (2) Within 14 days, claimant Zeller s is to meet with Dr. Kirkland for the purpose of having a psychological evaluation conducted. (3) Within 21 days, Dr. Kirkland shall prepare a psychological report and shall file said report with this court as further set out. Signed by Honorable Judge Myron H. Thompson on 11/21/2012. (jg, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
UNITED STATES OF AMERICA,
ONE PARCEL OF PROPERTY
LOCATED AT 9607 LEE ROAD
72, WAVERLY, LEE COUNTY,
ALABAMA, WITH ALL
(Tax Map No.
CIVIL ACTION NO.
OPINION AND ORDER
The cause is before the court on the government’s
claimant Broderick Zellers.
The court cannot rule on the
government’s request at this time because the record
determine Zellers’s competency to participate in this
civil asset forfeiture proceeding.
court will order a psychological evaluation of Zellers’s
Federal Rule of Civil Procedure 17(c) provides for
the appointment of a guardian ad litem to “protect an
incompetent person” in a civil action.
17(c) does not define “incompetent person.”
preceding subsection, 17(b), for its definition.
e.g., Thomas v. Humfield, 916 F.2d 1032, 1035 (5th Cir.
1990); Donnelly v. Parker, 486 F.2d 402, 406 (D.C. Cir.
1973); Scannavino v. Florida Dep’t of Corr., 242 F.R.D.
662, 663 (M.D. Fla. 2007) (Merryday, J.).
litigant’s capacity to sue, and hence the need for a
Zellers’s State of domicile is Alabama.
Rules of Civil Procedure provide only that the capacity
“to sue or be sued shall be determined by the law of this
providing a definition.
Ala. R. Civ. P. 17(b).
1975 Ala. Code § 26-2A-20(8).
context, Alabama law defines “incapacitated person” as:
“Any person who is impaired by reason of
physical illness or disability, physical
advanced age, chronic use of drugs,
chronic intoxication, or other cause
(except minority) to the extent of
lacking sufficient understanding or
The critical question is thus whether a person
“lack[s] sufficient understanding or capacity to make or
Alabama state courts have not directly held that this
definition applies to determining a person’s capacity to
litigate, one federal court has employed it for that
See Brown v. Williamson, 134 F. Supp. 2d 1286,
1291 (M.D. Ala. 2001) (Albritton, J.).
Without the benefit of clear state directive, other
question in terms of whether the litigant “understand[s]
the nature and effect of the litigation.”
Bodnar, 441 F.2d 1103, 1104 (5th Cir. 1971);* Scannavino,
242 F.R.D. at 664.
This federal standard strikes the
court as but a more specific application of Alabama’s
“incapacitated person” definition to the civil litigation
“understand the nature and effect of the litigation” is
a litigant who is incapable of “making or communicating
responsible decisions” as to that litigation.
Therefore, although this court finds no state case
law directly on point, Alabama’s statutory definition of
“incapacitated person” provides enough guidance for the
court to make an educated guess as to how the Alabama
* In Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc), the Eleventh Circuit adopted
as binding precedent all of the decisions of the former
Fifth Circuit handed down prior to the close of business
September 30, 1981.
courts would approach this issue.
See Smigiel v. Aetna
Sur. Co., 785 F.2d 922, 925 (11th Cir. 1986);
Trail Builders Supply Co. V. Reagan, 409 F.2d 1059, 1061
(5th Cir. 1969).
The court thus views the relevant
inquiry to be whether there is sufficient evidence in the
record to determine that Zellers is mentally impaired to
the extent that he cannot understand the nature and
effect of this litigation.
schizophrenia for over 25 years.
Less than one year ago
he was hospitalized “for an acute decompensation with
Letter from Brenda Moon, MSN (Doc. No. 56
Zellers’s sister, Yolanda Zellers, states that
his “ability to comprehend legal issues is limited to
Aff. Yolanda Zellers (Doc. No. 56 Ex. 6).
Based on the foregoing representations, this court
understand the current legal proceeding.
court is not prepared to declare Zellers incompetent
without the benefit of a full and timely report from a
mental healthcare professional.
The court thus will
order a psychological evaluation to determine whether
Zellers is able to understand the legal nature and effect
of the pending litigation.
The court and the parties
Clinical & Forensic Psychologists PC, should complete the
The government has agreed to pay the cost of
Accordingly, it is ORDERED as follows:
(1) Dr. Karl Kirkland is appointed to perform a
psychological evaluation of claimant Broderick Zellers.
The United States is to bear the cost of Dr. Kirkland’s
time and expenses.
(2) Within 14 days, claimant Zellers is to meet with
Dr. Kirkland for the purpose of having a psychological
(3) Within 21 days, Dr. Kirkland shall prepare a
psychological report and shall file said report with this
The report shall include claimant Zellers’s
psychiatric, psychological, and medical tests that were
employed and their results; Dr. Kirkland’s findings; and
diagnosis and prognosis and whether claimant Zellers is
suffering from a mental disease or defect rendering him
mentally incompetent to the extent that he is unable to
DONE, this the 21st day of November, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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