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

Filing 86

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,

)
)
Plaintiff,
)
)
v.
)
)
ONE PARCEL OF PROPERTY
)
LOCATED AT 9607 LEE ROAD
)
72, WAVERLY, LEE COUNTY,
)
ALABAMA, WITH ALL
)
APPURTENANCES THEREON,
)
(Tax Map No.
)
43-06-07-26-0-000-026.003) )
et al.,
)
)
Defendants.
)

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

OPINION AND ORDER
The cause is before the court on the government’s
request

for

appointment

of

claimant Broderick Zellers.

a

guardian

ad

litem

for

The court cannot rule on the

government’s request at this time because the record
contains

insufficient

evidence

for

the

court

to

determine Zellers’s competency to participate in this
civil asset forfeiture proceeding.

Accordingly, the

court will order a psychological evaluation of Zellers’s
legal competency.
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.

However, Rule

17(c) does not define “incompetent person.”
agrees

with

other

courts

that

have

This court

referred

to

preceding subsection, 17(b), for its definition.

the
See,

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.).

Rule 17(b)

requires

individual

federal

courts

to

determine

an

litigant’s capacity to sue, and hence the need for a
guardian

ad

litem,

“by

the

law

of

the

individual’s

domicile.”
Zellers’s State of domicile is Alabama.

The Alabama

Rules of Civil Procedure provide only that the capacity
“to sue or be sued shall be determined by the law of this

2

state,”

and,

like

the

providing a definition.
Alabama

Code

“incapacitated
guardianship.

does,

federal

stop

short

Ala. R. Civ. P. 17(b).

however,

person”

rules,

offer

within

a
its

of
The

definition

of

chapter

on

1975 Ala. Code § 26-2A-20(8).

In this

context, Alabama law defines “incapacitated person” as:
“Any person who is impaired by reason of
mental
illness,
mental
deficiency,
physical illness or disability, physical
or
mental
infirmities
accompanying
advanced age, chronic use of drugs,
chronic intoxication, or other cause
(except minority) to the extent of
lacking sufficient understanding or
capacity
to
make
or
communicate
responsible decisions.”
Id.

The critical question is thus whether a person

“lack[s] sufficient understanding or capacity to make or
communicate

responsible

decisions.”

Id.

Although

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
purpose.

See Brown v. Williamson, 134 F. Supp. 2d 1286,

1291 (M.D. Ala. 2001) (Albritton, J.).
3

Without the benefit of clear state directive, other
federal

courts

have

analyzed

the

civil

competency

question in terms of whether the litigant “understand[s]
the nature and effect of the litigation.”

Bodnar v.

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
context.

In

other

words,

a

litigant

who

cannot

“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.
4

courts would approach this issue.
Cas. &

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.
Letters
providers

from

show

Zellers’s

that

he

has

mental-health
been

schizophrenia for over 25 years.

in

treatment

treatment

for

Less than one year ago

he was hospitalized “for an acute decompensation with
depression.”
Ex. 8).

Letter from Brenda Moon, MSN (Doc. No. 56

Zellers’s sister, Yolanda Zellers, states that

his “ability to comprehend legal issues is limited to
non-existent.”

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

Based on the foregoing representations, this court
has

serious

concerns

about

Zellers’s

understand the current legal proceeding.

5

ability

to

However, the

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.
agree

that

Dr.

Karl

The court and the parties

Kirkland,

with

Kirkland

&

King

Clinical & Forensic Psychologists PC, should complete the
evaluation.

The government has agreed to pay the cost of

the evaluation.
***
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
evaluation conducted.

6

(3) Within 21 days, Dr. Kirkland shall prepare a
psychological report and shall file said report with this
court.
history

The report shall include claimant Zellers’s
and

present

symptoms;

a

description

of

the

psychiatric, psychological, and medical tests that were
employed and their results; Dr. Kirkland’s findings; and
Dr.

Kirkland’s

opinions

as

to

claimant

Zellers’s

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
understand

the

nature

and

effect

of

the

pending

litigation.
DONE, this the 21st day of November, 2012.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE