Stoller v. Bank of New York Mellon Trust Co et al

Filing 56

ORDER striking 52 Plaintiff's Motion for Leave to Appeal in forma pauperis. Signed by Judge G Murray Snow on 2/14/12.(DMT)

1

WO

SC

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14

Christopher Stoller,

)
)
Plaintiff,
)
)
vs.
)
)
Bank of New York Mellon Trust Co., et)
al.,
)
)
Defendants.
)
)

No. CV-11-2454-PHX-GMS (JFM)
ORDER

15

Plaintiff Christopher Stoller, who is incarcerated in the Dixon Correctional Center in

16

Dixon, Illinois, commenced this action pro se in the Central District of Illinois. That Court

17

transferred the case to this District based on venue. (Doc. 1, 2.) Plaintiff subsequently

18

submitted to this Court a copy of a February 2011 Order issued by the Illinois Circuit Court

19

for the Nineteenth Judicial Circuit (Illinois Probate Court) appointing the Illinois Office of

20

the State Guardian as plenary guardian over Plaintiff’s estate and person, case# 09 P 957.1

21
22
23
24
25
26
27
28

1

For appointment of a plenary guardian, the trial court must find the disabled adult
is totally without capacity. In re Estate of Fallos, 898 N.E.2d 793, 800 (Ill. Ct. App. 2008).
“The probate court, upon petition of a guardian, . . . and after notice to all other persons
interested as the court directs, may authorize the guardian to exercise any or all powers
over the estate and business affairs of the ward that the ward could exercise if present and
not under disability.” 755 Ill. Comp. Stat. 5/11a-18(a) (emphasis added). In addition,
“[a]ctions or applications of funds [by a guardian] may include, but shall not be limited to,
the following: . . . (2) conveying, releasing, or disclaiming his or her contingent and
expectant interests in property . . .; [and] (8) exercising the rights of the ward to elect benefit
or payment options, to terminate, to change beneficiaries or ownership, to assign rights, to

1

(Doc. 10, ex. 1.) The Illinois Probate Court determined that Plaintiff was “totally without

2

understanding or capacity to make and communicate decisions regarding his person” and his

3

estate.2 (Id.) In an Order filed on January 3, 2012, this Court ordered Plaintiff to show cause

4

within 30 days why this action should not be dismissed based on his lack of legal capacity

5

to commence this action due to the guardianship. (Id.) On January 31, 2012, Plaintiff filed

6

a motion for extension of time to comply with the January 3, 2012 Order in any respect

7

despite filing various other matters in this case. (Doc. 32.)

8

On February 6, 2012, Plaintiff, appearing for the first time through counsel, filed an

9

application to proceed in forma pauperis that substantially complied with the requirements

10

for a prisoner to proceed in forma pauperis, which had also been required by the January 3

11

Order. (Doc. 37.) Plaintiff’s counsel also filed a “Motion to Show Cause,” which the Court

12

construed as a Response to the January 3, 2012 Order. (Doc. 42.) In addition, Plaintiff’s

13

counsel filed a motion for entry of default and default judgment and a motion for injunctive

14

relief. (Doc. 40, 44.)

15

On February 9, 2012, the Court granted Plaintiff, now represented by counsel,

16

fourteen days in which to file a memorandum of points and authorities to support the

17

Response to the show cause order. (Doc. 48.) The Court stated that it would hold Plaintiff’s

18

application to proceed in forma pauperis in abeyance pending the filing of the memorandum

19

and denied the other motions. (Id.)

20

Plaintiff, rather than his attorney, has now filed a notice of interlocutory appeal and

21

a motion for leave to proceed in forma pauperis on appeal. (Doc. 50, 52.) LR Civ.

22
23
24
25
26
27

borrow, or to receive cash value in return for a surrender of rights under any one or more of
the following: (i) life insurance policies, plans, or benefits, (ii) annuity policies, plans, or
benefits, (iii) mutual fund and other dividend investment plans, (iv) retirement, profit
sharing, and employee welfare plans and benefits; . . . . 755 Ill. Comp. Stat. 5/11-18(a-5)
(emphasis added). Finally, the guardian of the estate of a ward shall appear for and represent
the ward in all legal proceedings unless another person is appointed for that purpose as
guardian or next friend. . . . 755 Ill. Comp. Stat. 5/11a-18(c) (emphasis added).
2

28

The Probate Court noted a Physician’s Report in support of its determination.
-2-

1

83.3(c)(2) provides that whenever an attorney has appeared for a party in a case, the party

2

may not thereafter appear or act in his own behalf or take any steps therein, unless a notice

3

of substitution of counsel shall have first been made, and that an attorney who has appeared

4

of record shall sign all papers filed on behalf of the party. Plaintiff’s motion to proceed in

5

forma pauperis on appeal has not been signed by his attorney and will be ordered stricken.

6

IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma pauperis on

7
8

appeal is ordered stricken. (Doc. 52.)
DATED this 14th day of February, 2012.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-