Jurgens v. Dubendorf, et al

Filing 17

ORDER signed by Judge Kimberly J. Mueller on 8/17/2015 GRANTING 9 Motion to Dismiss with leave to amend the complaint as to the allegations of incompetency; DENYING the Petition for Appointment of a Guardian Ad Litem re 13 Opposition; DIRECTING t he plaintiff to file an amended complaint or a second petition for appointment of a guardian ad litem within 30 days; INFORMING all parties that this order is without prejudice to defendants' renewing their 12(b)(6) motion once the operative pleadings are clarified as provided in this order. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFREY A. JURGENS, JR.,

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Plaintiff,

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No. 2:14-cv-02780 KJM DAD

v.

ORDER

California Highway Patrol Officer M.
DUDENDORF (Badge #18286), et al.,
Defendants.

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This matter is before the court on defendant Officer Duryee’s motion to dismiss

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for failure to state a claim and for lack of standing. Defs.’ Mot., ECF No. 9. Officer Duryee is

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joined in his motion by defendant Officers Dubendorf, Saukkola, Newman, and White. Joinder,

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ECF No. 11. Plaintiff opposes the motion, attaching a petition for appointment of guardian ad

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litem. Opp’n, ECF No. 13, 13-1. Defendants have replied. ECF Nos. 14 & 15. This matter is

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decided without a hearing. As explained below, the court GRANTS the motion with leave to

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amend and denies the petition for appointment of guardian ad litem without prejudice.

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I.

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ALLEGED FACTS
The following allegations are taken from plaintiff’s complaint, filed on his behalf

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by his mother, Joanna Jurgens. Plaintiff Jeffrey Jurgens was diagnosed with bipolar and

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schizoaffective disorder when he was 14 years old. Compl. ¶ 1, ECF No. 1. California Highway
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Patrol (CHP) officers observed plaintiff driving in downtown Sacramento on the night of

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December 10, 2012. Id. At the time, plaintiff was 21 years old and “experiencing a psychotic

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break.” Id. Plaintiff led the officers on a high-speed chase through downtown and nearby

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residential neighborhoods; the chase ended when plaintiff reached a dead-end street. Id. Plaintiff

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surrendered, opening his car door and putting his hands in the air, at which point CHP officers

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began a coordinated attack on him. Id. As a result, plaintiff suffered a broken hand, traumatic

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brain injury, and severe psychological trauma, including but not limited to post-traumatic stress

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disorder. Id. ¶ 25. The incident was recorded on an officer’s in-car camera video. Id. ¶ 16.

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Plaintiff is currently in custody at the Sacramento County Jail on criminal charges

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unrelated to the instant action. Mot. at 3.

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II.

PROCEDURAL BACKGROUND

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Plaintiff’s complaint, filed on November 26, 2014, contains four claims for

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constitutional violations under 42 U.S.C. § 1983. Compl. ¶¶ 34-57. Joanna Jurgens asserts the

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claims standing as a next friend to her son, relying on Federal Rule of Civil Procedure 17(c). Id.

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¶ 4. Ms. Jurgens alleges plaintiff is gravely mentally disabled and thus incompetent to bring this

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action on his own behalf. Opp’n at 3. Defendants argue Ms. Jurgens has not met her burden to

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show incompetency and lacks a court order appointing her as plaintiff’s next friend as required by

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Rule 17. Mot. at 3. Defendants further argue Ms. Jurgens lacks standing because she herself did

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not suffer any type of injury or harm and because plaintiff is competent to bring an action on his

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own behalf. Id. at 4-6. Plaintiff opposes the motion, but should it be granted, alternatively

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requests that the court provide leave to amend the complaint to augment the allegations of

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incompetency, or accept and approve her petition for appointment as guardian ad litem. Opp’n at

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3, Ex. 1.

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III.

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REQUEST FOR JUDICIAL NOTICE
Defendants request the court take judicial notice of the Sacramento County

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Superior Court’s minute order regarding plaintiff’s 2012 plea. Defs.’ Req. for Jud. Notice (RJN),

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Ex. A, ECF No. 10. The court may take judicial notice of adjudicative facts not subject to

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reasonable dispute. See Fed. R. Evid. 201. Moreover, a court “may take judicial notice of
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‘matters of public record’ without converting a motion to dismiss into a motion for summary

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judgment.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (internal citation

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omitted). Plaintiff does not object to the request.

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Defendants’ request for judicial notice is GRANTED.
IV.

LEGAL STANDARD
Because the court resolves the motion on the basis of standing under 12(b)(1), it

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need not review the standard for a 12(b)(6) motion. “Those who seek to invoke the jurisdiction of

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the federal courts must satisfy the threshold requirement imposed by Article III of the

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Constitution by alleging an actual case or controversy.” Maya v. Centex Corp., 658 F.3d 1060,

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1067 (9th Cir. 2011) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)). Unlike

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motions to dismiss for lack of statutory standing under Rule 12(b)(6), “lack of Article III standing

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requires dismissal for lack of subject matter jurisdiction under Federal Rule 12(b)(1).” Id.

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(emphasis omitted)

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Federal courts are courts of limited jurisdiction and, until proven otherwise, cases

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lie outside their jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375,

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377-78 (1994). A Rule 12(b)(1) motion to dismiss for lack of jurisdiction may be either facial,

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where the inquiry is confined to the allegations in the complaint, or factual. White v. Lee, 227

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F.3d 1214, 1242 (9th Cir. 2000). In a factual attack, as here, “no presumptive truthfulness

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attaches to the plaintiff’s allegations, and the existence of disputed material facts will not preclude

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the trial court from evaluating for itself the merits of jurisdictional claims.” Thornhill Publ’g Co.

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v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979); see McCarthy v. United States,

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850 F.2d 558, 560 (9th Cir. 1988) (stating that in evaluating factual attacks, “the district court is

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not restricted to the face of the pleadings, but may review any evidence, such as affidavits and

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testimony, to resolve factual disputes concerning the existence of jurisdiction”). “Once the

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moving party has converted the motion to dismiss into a factual motion by presenting affidavits or

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other evidence properly brought before the court, the party opposing the motion must furnish

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affidavits or other evidence necessary to satisfy its burden of establishing subject matter

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jurisdiction.” Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).
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V.

DISCUSSION
A.

Subject Matter Jurisdiction
Establishing Article III standing is the core prerequisite – “the irreducible

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constitutional minimum” – in any federal case. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

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(1992). Though it has long been accepted as an alternative basis for jurisdiction, maintaining an

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action as a “next friend” does not waive a showing of the traditional elements of standing.

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“‘[N]ext friend’ standing is by no means granted automatically to whomever seeks to pursue an

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action on behalf of another.” Whitmore v. Arkansas, 495 U.S. 149, 163 (1990). It is the putative

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next friend’s burden to present “meaningful evidence” showing (1) “an adequate explanation –

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such as inaccessibility, mental incompetence, or other disability – why the real party in interest

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cannot appear on his own behalf to prosecute the action,” and (2) dedication “to the best interests

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of the person on whose behalf he seeks to litigate.” Id.

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The Ninth Circuit has recognized “a per se rule” that a parent satisfies the second

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prong of the Whitmore test. Vargas v. Lambert, 159 F.3d 1161, 1168 (9th Cir. 1998). Here,

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plaintiff’s complaint alleges that Joanna Jurgens is Jeffrey’s mother. Absent evidence to the

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contrary, the court presumes her dedication to plaintiff’s best interests. The one question

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remaining is whether plaintiff has presented meaningful evidence of Jeffrey Jurgens’

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incompetency. Meaningful evidence in the next friend context must be of such a nature as to

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indicate whether a plaintiff “has capacity to appreciate his position and make a rational choice

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with respect to continuing or abandoning further litigation” or “whether he is suffering from a

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mental disease, disorder, or defect which may substantially affect his capacity in the premises.”

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Rees v. Peyton, 384 U.S. 312, 314 (1966); cf. Whitmore, 495 U.S. at 165 (accepting competency

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showing where recent evidentiary hearing, questioning by trial court, and recent psychiatric

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interview suggested defendant had “knowing” and “intelligent” awareness of his situation); Allen

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v. Calderon, 408 F.3d 1150, 1152-54 (9th Cir. 2005) (allowing sworn declarations from pro se

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party and other inmates, treating physicians or psychologists, and medical records to be

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considered in competency evaluation). Neither a history of mental illness nor a previous

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determination of incompetency is sufficiently indicative of a plaintiff’s current competency
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status. See Massie ex rel. Kroll v. Woodford, 244 F.3d 1192, 1198 (9th Cir. 2001) (evidence of

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incompetency related to time period predating action was insufficient for purposes of establishing

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current status); Hoang Minh Tran v. Gore, No. 10CV2682, 2013 WL 878771, at *5 (S.D. Cal.

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Mar. 8, 2013) (documents showing history of mental illness including depression, schizophrenia,

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post-traumatic stress disorder, anxiety, suicide attempt, and treatment with medications, failed to

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“show that Plaintiff, in his current state and with his current medications, is incompetent”).

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The complaint in this case alleges that Jeffrey Jurgens was diagnosed as bipolar

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with schizoaffective disorder when he was 14 years old, Compl. ¶ 1, was experiencing a

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psychotic break on the night of December 10, 2012, id., suffered a traumatic brain injury and

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severe psychological trauma as a result of defendants’ actions, id., and is gravely mentally

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disabled and not competent to bring this action here on his own behalf, id. ¶ 4. Defendants argue

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that plaintiff’s 2012 plea in the criminal proceeding in Sacramento County Superior Court

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suggests plaintiff’s competence for the purposes of maintaining a civil action on his own behalf.

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Mot. at 4. In so arguing, defendants’ motion mounts a factual attack, based on the court records

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of which the court takes notice. The court also considers the declaration of Beau Weiner,

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plaintiff’s criminal defense attorney in the state case, in determining whether Ms. Jurgens has met

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her burden of showing plaintiff’s incompetency. Defendants do not oppose the declaration, but

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argue it is insufficient to support any inference of incompetency. See ECF Nos. 14, 15.

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The minute order showing plaintiff’s acceptance of a criminal plea is dated

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January 9, 2012. RJN, Ex. A. Even if this court were to agree with defendants that “[i]f Mr.

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Jurgens was competent enough [to accept a criminal plea] . . . it suggests that he would be

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competent enough to maintain a civil action on his own,” the Massie case cited above is

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controlling. Just as a previous determination of incompetency is not indicative of a plaintiff’s

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current status, a previous determination of competency is similarly deficient. Massie, 224 F.3d at

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1198. Here, the state court’s minute order records events from more than three years ago, in a

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boilerplate format; while the minute order form includes standard preprinted language saying

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plaintiff’s plea was voluntary, it does not reflect that the judge even considered the issue or made

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an express finding of competency. The minute order is not determinative of Jeffrey Jurgens’

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current competency.

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Beau Weiner’s declaration references evaluations of the plaintiff conducted

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between December 1, 2014 and March 18, 2015 under Penal Code § 1027, which provides for a

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determination of Not Guilty By Reason of Insanity (NGRI). Weiner Decl., ECF No. 13-1, Ex. A

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at ¶¶ 2-3. The declaration also states, “During my many attorney client visits with Plaintiff, on

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multiple occasions the past few months I have observed him exhibit certain behaviors, which I

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believe to be hallucinations.” Weiner Decl. ¶ 2. In Massie, a journalist named Kroll sought to

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establish next friend standing for the purposes of filing a motion for a stay of execution on

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Massie’s behalf. Massie, 244 F.3d at 1195. The appellate court affirmed the district court’s

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denial of Kroll’s next friend petition because the evidence presented on Massie’s incompetence

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consisted of outdated medical records and a declaration by Kroll alleging Massie’s “obvious

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mental illness.” Id. at 1197. The court found Kroll’s “lay declaration” did not constitute

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meaningful evidence, especially given that “Kroll [was] not a mental health expert.” Id. Here,

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although the Weiner declaration contains recent observations regarding plaintiff’s mental health,

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Weiner is not a mental health expert. The NGRI evaluations referenced in his declaration have

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not been submitted to the court, nor have any other medical documents. Bare allegations of

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incompetency, unsupported by current medical evaluations made by medical professionals, do not

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constitute meaningful evidence under the Whitmore standard. Ms. Jurgens has therefore not

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provided an adequate explanation for plaintiff’s inability to appear on his own behalf. She lacks

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standing as a next friend.

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B.

Petition for Guardian Ad Litem
Under Federal Rule of Civil Procedure 17(c)(2), “[a] minor or an incompetent

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person who does not have a duly appointed representative may sue by a next friend or by a

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guardian ad litem.” Fed. R. Civ. P. 17(c)(2). Local Rule 202(a) provides that,

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“Upon commencement of an action or upon initial appearance in
defense of an action by or on behalf of a minor or incompetent
person, the attorney representing the minor or incompetent person
shall present (1) appropriate evidence of the appointment of a
representative for the minor or incompetent person under state law
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or (2) a motion for the appointment of a guardian ad litem by the
Court, or, (3) a showing satisfactory to the Court that no such
appointment is necessary to ensure adequate representation of the
minor or incompetent person.”

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E.D. Cal. L.R. 202(a). The local rule of course does not supersede Federal Rule of Civil

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Procedure 17. The Ninth Circuit has stated, “Although the [district] court has broad discretion

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and need not appoint a guardian ad litem if it determines the person is or can be otherwise

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adequately protected, it is under a legal obligation to consider whether the person is adequately

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protected.” United States v. 30.64 Acres of Land, More or Less, Situated in Klickitat Cnty., State

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of Wash., 795 F.2d 796, 805 (9th Cir. 1986). While the court is alert to the possibility plaintiff

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may not be able to represent himself, as set forth above, plaintiff has not yet made a satisfactory

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showing that no appointment is necessary and she may proceed as a next friend. Therefore, the

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court considers the motion for an appointment of a guardian ad litem.

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Federal Rule of Civil Procedure 17 governs the determination of a plaintiff’s

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capacity, and provides that the process of a guardian ad litem’s appointment is controlled by the

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law of the plaintiff’s domicile. Fed. R. Civ. P. 17(b). In California, courts generally defer an

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appointment until after notice and a hearing, or look to whether an incompetent adult has

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consented to an appointment. See Golden Gate Way, LLC v. Stewart, No. C 09-04458, 2012 WL

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4482053, at *3 (N.D. Cal. Sept. 28, 2012) (citing In re Jessica G., 93 Cal. App. 4th 1180, 1187-

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88 (2001)). Though a formal noticed motion and hearing on the question of incompetency is not

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required in every case, “[a]t a minimum the court should make an inquiry sufficient to satisfy it

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that the [party] is, or is not, competent . . . . The court’s decision on this issue should be stated on

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the record.” Jessica G., 93 Cal. App. 4th at 1188.

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This court recognizes the impact on a litigant’s autonomy triggered by the

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appointment of a guardian ad litem. See id. at 1186-87 (recognizing that appointment is “no

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small matter” given that a guardian is given “broad powers” to control the litigation). As

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explained above, there is a dearth of evidence supporting a finding of plaintiff’s incompetency,

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and no evidence suggests plaintiff is informed of or has consented to the appointment. Notice to

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the plaintiff and a more developed factual record is required for the court to make a competency
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determination before considering Ms. Jurgens’ petition. The court DENIES plaintiff’s petition

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for appointment of a guardian ad litem, without prejudice. Because standing is in doubt, the court

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does not reach the balance of defendant’s motion.

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VI.

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CONCLUSION
The motion to dismiss is GRANTED with leave to amend the complaint as to the

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allegations of incompetency. The petition for appointment of a guardian ad litem is DENIED

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without prejudice. Plaintiff is directed to file either an amended complaint consistent with this

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order or a second petition for appointment of a guardian ad litem within 30 days of entry of this

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order. This order is without prejudice to defendants’ renewing their 12(b)(6) motion once the

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operative pleadings are clarified as provided in this order.
IT IS SO ORDERED.
DATED: August 17, 2015.

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UNITED STATES DISTRICT JUDGE

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