Palmer v. Vasquez et al

Filing 23

ORDER GRANTING Plaintiff's Petition for Appointment of Benita Palmer as Guardian ad Litem for Minor K.W. re 14 , signed by Magistrate Judge Jennifer L. Thurston on 2/7/2014. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BENITA PALMER, et al.,
Plaintiffs,

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v.

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SALVADOR VASQUEZ, et al.,
Defendants.

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Case No.: 1:13-cv-01400 - AWI - JLT
ORDER GRANTING PLAINTIFF’S PETITION
FOR APPOINTMENT OF BENITA PALMER AS
GUARDIAN AD LITEM FOR MINOR K.W., Jr.
(Doc. 14)

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Plaintiff K.W., a minor, filed a petition to appoint Benita Palmer as his guardian ad litem in

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this action. (Doc. 14.) For the following reasons, the petition for the appointment of a guardian ad

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litem is GRANTED.

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I.

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Procedural History
On January 6, 2014, the plaintiffs filed a Second Amended Complaint, asserting the defendants

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are liable for the death of Ladwright Lamon Smith, the father of K.W. (Doc. 13.) According to the

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plaintiffs, Smith “was murdered while incarcerated at the California Correctional Institution, located in

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Tehachapi, California prison.” (Id. at 4.) The plaintiffs allege Smith was found bleeding in his cell on

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July 15, 2012, and was given adequate medical care because “[t]he two medical Defendants had

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difficulty operating electric shock, stop[ping] the leading, and did not call outside sources for

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assistance.” (Id. at 8, 9.) Further, the plaintiffs allege that “[t]he prison staff failed to evacuate the

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injured Smith, have the necessary and needed staff, failed to have the proper equipment or even a

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motorized and effective transportation system.” (Id. at 9-10.)
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Based upon the foregoing, the plaintiffs assert the defendants are liable for wrongful death;

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negligence/ gross negligence; cruel and unusual punishment in violation of the Eighth and Fourteenth

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Amendments; violation of the Fifth Amendment’s due process clause; failure to properly supervise,

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hire, and train; and loss of freedom of association in violation of the First Amendment. (See Doc. 13.)

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II.

Legal Standard
Pursuant to the Federal Rules of Civil Procedure, “[a] minor . . . who does not have a duly

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appointed representative may sue by a next friend or by a guardian ad litem.” Fed. R. Civ. P. 17(c)(2).

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In addition, a court “must appoint a guardian ad litem - or issue another appropriate order - to protect a

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minor or incompetent person who is unrepresented in an action.” Id. The capacity of an individual to

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sue is determined “by the law of the individual’s domicile.” Fed. R. Civ. P. 17(b). Here, the law of

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the state of California governs the ability of K.W. to bring suit. Pursuant to California law, a minor

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may bring suit as long as a guardian conducts the proceedings. Cal. Fam. Code §§ 6502, 6601. A

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guardian ad litem may be appointed to represent the minor’s interests. Cal. Code Civ. P. § 372(a).

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In determining whether to appoint a particular guardian ad litem, the court must consider

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whether the minor and the guardian have divergent interests. Cal. Code Civ. P. § 372(b)(1). “When

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there is a potential conflict between a perceived parental responsibility and an obligation to assist the

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court in achieving a just and speedy determination of the action, a court has the right to select a

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guardian ad litem who is not a parent if that guardian would best protect the child’s interests.” Williams

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v. Super. Ct., 147 Cal. App. 4th 36, 38 (Cal. Ct. App. 4th 2007) (internal quotation marks and citation

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omitted). “[I]f the parent has an actual or potential conflict of interest with his child, the parent has no

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right to control or influence the child’s litigation.” Id. at 50.

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III.

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Discussion
Plaintiff is fourteen years old, and requests the appointment of his mother, Benita Palmer, as

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his guardian ad litem. (Doc. 14; Doc. 22-1.) Because Plaintiff is under the age of eighteen, he is a

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minor under California law. See Cal. Fam. Code § 6502. Therefore, as a minor, his ability to bring

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suit is contingent upon appointment by the court of a guardian ad litem.

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Upon review of the Second Amended Complaint, it does not appear there are adverse interests

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in this action. Therefore, Ms. Palmer’s appointment as guardian ad litem for K.W. is appropriate. See
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Burke v. Smith, 252 F.3d 1260, 1264 (11th Cir. 2001) (“Generally, when a minor is represented by a

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parent who is a party to the lawsuit and who has the same interests as the child there is no inherent

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conflict of interest.”); see also Anthem Life Ins. Co. v. Olguin, 2007 U.S. Dist. LEXIS 37669, at *7

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(E.D. Cal. May 9, 2007) (observing “[a] parent is generally appointed guardian ad litem”).

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IV.

Conclusion and Order

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The decision whether to appoint a guardian ad litem is “normally left to the sound discretion of

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the trial court.” United States v. 30.64 Acres of Land, etc., 795 F.2d 796, 804 (9th Cir. 1986). Here, it

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does not appear Ms. Palmer has interests that conflict with the interest of her son. Therefore, the Court

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is acting within its discretion to approve the appointment of Ms. Palmer as the guardian ad litem.

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Accordingly, IT IS HEREBY ORDERED:

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The petition for appointment of Benita Palmer as guardian ad litem for Plaintiff K.W. is
GRANTED; and

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Benita Palmer is appointed to act as guardian ad litem for Plaintiff K.W., and is
authorized to prosecute this action on his behalf.

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IT IS SO ORDERED.
Dated:

February 7, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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