Heinemann et al v. Patchey

Filing 29

ORDER. For the reasons set forth herein, the motion 10 for preliminary injunction is DENIED. Signed by Judge Michael P. Shea on 3/24/17. (Tegeler, D.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
F. PARKER HEINEMANN and SUSAN VOIGT,

No. 3:16-cv-774 (MPS)

Plaintiffs,
v.
ROSEANNE PATCHEY,
Defendant.
RULING ON PRELIMINARY INJUNCTION
This case arises out of a dispute over the management of the affairs of Plaintiff F. Parker
Heinemann, a man in his eighties in Old Saybrook, Connecticut. On April 13, 2016, at the request
of his wife and children, a court in Florida declared Mr. Heinemann to be incompetent and
appointed an emergency temporary guardian for him, defendant Roseanne Patchey. (ECF Nos. 102 at 2, 17-1 at 1, 17-2 at 5-6.) One day later, on April 14, 2016, a court in Connecticut declared
Mr. Heinemann to be competent, and appointed his companion, Plaintiff Susan Voigt, to be
voluntary conservator of his person and estate. (ECF No. 10-2 at 5-6.) On May 19, 2016, Mr.
Heinemann and Ms. Voigt initiated this federal action, bringing Fourth and Fourteenth
Amendment claims against Ms. Patchey under 42 U.S.C. § 1983 (“Section 1983”). (ECF No. 1.)
Plaintiffs seek a preliminary injunction to prevent Ms. Patchey from bringing Mr.
Heinemann to Florida and interfering with his financial accounts. (ECF No. 10.)1 As set forth
below, the preliminary injunction is DENIED, because it appears that Ms. Patchey was not acting
under color of state law as required to sustain a Section 1983 claim. Plaintiffs have therefore not
shown a likelihood of success on the merits or sufficiently serious questions going to the merits of
the claim.

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Ms. Patchey has also filed a motion to stay (ECF No. 15), which I do not address in this ruling.
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I.

Background
A. Initial State Court Proceedings
On February 10, 2016, Mr. Heinemann’s son filed an application for involuntary

guardianship in the Circuit Court of Florida. In Re: Frank Parker Heinemann, Nos. 16-GA-41 and
16-GA-42 (Fla. Cir. Ct.); see also ECF Nos. 10-2 at 2, 17-1 at 1. The court held at least one hearing
on the application, at which Mr. Heinemann’s wife and children were present or represented. Id.
In March 2016, aware of the pending Florida action, Mr. Heinemann’s attorney, Howard
Gould, filed a voluntary application in Connecticut Probate Court to have Ms. Voigt appointed as
Mr. Heinemann’s conservator of person and estate. (ECF No. 10-2 at 1-2.) On March 23, 2016,
the Probate Court held a hearing on the application, which was opposed by Mr. Heinemann’s wife
and children. (Id. at 5.)
On April 13, 2016, the Florida Circuit Court determined that Mr. Heinemann was
incompetent and appointed Ms. Patchey to be his emergency temporary guardian under Fla. Stat.
§ 744.3031. (ECF No. 17-2 at 5-6.) The letter of emergency temporary guardianship stated that
Ms. Patchey had power “to contract; to sue or defend lawsuits; to control and manage property and
income from any source; to apply for government benefits; to determine residence; to consent to
medical and mental health treatment….” (Id. at 5.) The letter added that “[t]he emergency
temporary guardian is further authorized and directed to travel to Connecticut to assist FRANK
PARKER HEINEMANN in his return to Florida. Pursuant to Fla. Stat. § 731.3031(5), all
interested persons are restrained from interfering with the emergency temporary guardian in her
efforts to return FRANK PARKER HEINEMANN to Florida.” (Id.) The authority of the
emergency temporary guardian appointment was set to expire in ninety days. (Id. at 6.)

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On April 14, 2016, the Connecticut Probate Court appointed Ms. Voigt the conservator of
the person and the estate of Mr. Heinemann under Conn. Gen. Stat. § 45a-646, with certain special
conditions. (ECF No. 10-2 at 5-6.) The court noted that the “case has a unique twist in that there
is a pending Petition for Guardianship concerning Mr. Heinemann in the State of Florida,” but
found that it did have jurisdiction. (Id. at 5.) The court also found that Mr. Heinemann had “the
requisite understanding necessary to request a Conservator on a voluntary basis,” and that “the
possibility of undue influence is muted” by the fact of Mr. Heinemann’s and Ms. Voigt’s “unique
relationship, in that Mr. Heinemann remains married, but has been with Ms. Voigt in some
capacity, (friend, caretaker, companion) for approximately thirty years.” (Id. at 6.)
On May 4, 2016, Mr. Heinemann filed an initial appeal of the Florida Circuit Court’s
appointment of Ms. Patchey as temporary emergency guardian. The state court docket reflects a
“NOTICE OF APPEAL TO 2ND DCA ON NON-FINAL ORDER RENDERED 4/13/2016.” In
Re: Frank Parker Heinemann, Nos. 16-GA-41 and 16-GA-42 (Fla. Cir. Ct.).
On May 11, 2016, Mr. Heinemann’s wife filed an appeal of the Connecticut Probate
Court’s appointment of Ms. Voigt as conservator. Denise Heinemann v. F. Parker Heinemann,
No. MMX-CV-16-6015584-S (Conn. Super. Ct.); see also ECF No. 28-1 at 4-8.
B. This Federal Action
On May 19, 2016, Mr. Heinemann and Ms. Voigt filed this lawsuit, bringing Fourth and
Fourteenth Amendment claims under Section 1983 against Ms. Patchey. (ECF No. 1.) In the
complaint, the plaintiffs alleged that Ms. Patchey, “acting under color of law, has contacted local
law enforcement officials and requested assistance in forcibly abducting and transporting the
plaintiff, Heinemann, to Florida against his will and contrary to the decree of the Connecticut

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Probate Court.” (Id. ¶ 7.) They also alleged that Ms. Patchey had directed third party financial
institutions to freeze Mr. Heinemann’s accounts. (Id. ¶¶ 8-9.)
On August 24, 2016, plaintiffs filed a motion for preliminary injunction, asking me to
enjoin Ms. Patchey from moving Mr. Heinemann to Florida, order her to return any seized funds,
and order her to rescind any directives to third party financial institutions regarding such funds.
(ECF No. 10.) Attorney Gould and Ms. Voigt submitted affidavits supporting that motion.
Regarding transportation to Florida, Ms. Voigt stated that Mr. Heinemann’s last visit to
Florida had left him “shaken,” and “hesitant to visit his family in Florida again,” because Mr.
Heinemann’s family had him arrested, briefly detained by local police, and involuntarily admitted
to a psychiatric facility. (ECF No. 10-3 ¶ 5.) Attorney Gould agreed that Mr. Heinemann “does
not want to be transported to Florida, and is very fearful that the Florida order will be implemented
against his wishes.” (ECF No. 10-2 at 2.) Neither affidavit directly claimed that Ms. Patchey had
taken actions to move Mr. Heinemann to Florida, but Attorney Gould did assert that Mr.
Heinemann’s “fear was heightened when he was advised that 1) the Connecticut conservator had
been contacted by the Defendant to facilitate such arrangements; and 2) the Old Saybrook Police
had also been contacted to ‘assist’ in the process.” (Id. at 3.)
As for the financial issues, Attorney Gould explained that local managers at Liberty Bank
and Wells Fargo told him that no one could access Mr. Heinemann’s accounts because “the
Defendant asserted that the assets were under the control of the Florida courts.” (Id.) The Vanguard
Group also stated that no one could access Mr. Heinemann’s account until the conflict over who
had legal authorization was resolved. (Id. at 3-4.) According to Ms. Voigt, these financial
restrictions prevented her from paying the costs of Mr. Heinemann’s health care, namely a visiting
nurse, a physical therapist, and a home healthcare aide. (ECF No. 10-3 ¶ 6.)

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C. Current Status of State Court Proceedings
After this case was filed, on August 24, 2016, Liberty Bank initiated a separate action in
Connecticut to determine adverse claims to Mr. Heinemann’s funds. Liberty Bank v. Susan Voigt
and Roseanne Patchey, No. MMX-CV-16-6016170-S (Conn. Super. Ct.); see also ECF No. 28 at
2. On November 29, 2016, the Connecticut Superior Court ordered Liberty Bank to “honor any
and all requests from Susan Voigt acting as fiduciary for Frank Parker Heinemann for the
withdrawal of funds held on Mr. Heinemann’s behalf at Liberty Bank.” (ECF No. 28-3 at 1.)
While the appeal was pending in the Florida action, the Circuit Court issued a stay of its
order appointing Ms. Patchey as emergency temporary guardian. In Re: Frank Parker Heinemann,
Nos. 16-GA-41 and 16-GA-42 (Fla. Cir. Ct.); see also ECF Nos. 21 at 5, 28 at 2. Then, on March
9, 2017, the Florida Second District Court of Appeals affirmed the Circuit Court’s decisions
denying Mr. Heinemann’s earlier motions to dismiss and to terminate the emergency appointment.
(ECF Nos. 28 at 2, 28-2 at 1-3.) A hearing on whether the Circuit Court should terminate its current
stay of Ms. Patchey’s guardianship appointment is scheduled for April 5, 2017. (ECF No. 28 at 2.)
The Connecticut Superior Court has scheduled a hearing on the appeal of the Connecticut
Probate Court’s appointment of Ms. Voigt as conservator for June 16, 2017. (ECF No. 28 at 1-2.)
II.

Legal Standard
“[D]istrict courts may grant a preliminary injunction where a plaintiff demonstrates

irreparable harm and meets one of two related standards: either (a) a likelihood of success on the
merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair
ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving
party.” Otoe-Missouria Tribe of Indians v. New York State Dep’t of Fin. Servs., 769 F.3d 105, 110
(2d Cir. 2014) (citation and quotation marks omitted). District courts have wide discretion in

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determining whether to grant preliminary injunctive relief. Moore v. Consol. Edison Co. of New
York, Inc., 409 F.3d 506, 511 (2d Cir. 2005). “Such relief, however, is an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a clear showing, carries the burden
of persuasion.” Id. at 510 (citation and quotation marks omitted). “Generally, the district court is
not required to conduct an evidentiary hearing on a motion for a preliminary injunction when
essential facts are not in dispute.” Maryland Cas. Co. v. Realty Advisory Bd. on Labor Relations,
107 F.3d 979, 984 (2d Cir. 1997).
III.

Discussion
Plaintiffs’ motion for preliminary injunction fails because they have failed to demonstrate

sufficiently serious questions going to the merits of their claim.2 Specifically, it does not appear
that Ms. Patchey, as an emergency temporary guardian appointed for Mr. Heinemann by the
Florida court, acted under color of state law for purposes of Section 1983.
“In order to state a claim under § 1983, a plaintiff must allege that he was injured by either
a state actor or a private party acting under color of state law.” Ciambriello v. Cty. of Nassau, 292
F.3d 307, 323 (2d Cir. 2002). To satisfy Section 1983’s state action requirement, “the allegedly

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I also ordered the parties to show cause why the case should not be dismissed for lack of subject
matter jurisdiction under Rooker-Feldman, the doctrine that precludes district courts from hearing
“suits that are, in substance, appeals from state-court judgments,” Hoblock v. Albany Cnty. Bd. of
Elecs., 422 F.3d 77, 84 (2d Cir. 2005). (ECF No. 22.) For Rooker-Feldman to apply, “the statecourt judgment must have been ‘rendered before the district court proceedings commenced’—i.e.,
Rooker–Feldman has no application to federal-court suits proceeding in parallel with ongoing
state-court litigation.” Id. at 85. Here, the Florida state court litigation was ongoing at the time the
plaintiffs filed this federal lawsuit: the Florida temporary emergency guardian appointment
(termed a “non-final order” by the state court) was on appeal. Further, by its terms, the order
expired in ninety days. (ECF No.1-2 at 2.) Rooker-Feldman therefore does not bar the plaintiffs’
claim. See also Green v. Mattingly, 585 F.3d 97, 103 (2d Cir. 2009) (temporary child custody order
was not final for Rooker-Feldman purposes, although “[i]f, at the completion of her appeal
[through higher state courts], plaintiff were to bring a § 1983 action in federal court seeking the
return of her child…. the Rooker–Feldman doctrine would likely apply.”)
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unconstitutional conduct must be fairly attributable to the state. Conduct that is ostensibly private
can be fairly attributed to the state only if there is such a close nexus between the State and the
challenged action that seemingly private behavior may be fairly treated as that of the State itself.”
Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (internal citations and quotation
marks omitted).
First, “it is well-established that court-appointed attorneys performing a lawyer’s
traditional functions as counsel to defendant do not act ‘under color of state law’ and therefore are
not subject to suit under 42 U.S.C. § 1983.” Rodriguez v. Weprin, 116 F.3d 62, 65–66 (2d Cir.
1997). See also Polk County v. Dodson, 454 U.S. 312, 325 (1981) (public defenders do not act
under color of state law). Following the same logic, the Second Circuit has held that guardians
appointed for children in family court proceedings do not act under color of state law and thus
cannot be sued under Section 1983. Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015). The
court reasoned that “the analogy of a law guardian to a public defender is apt. Although both are
supplied and funded by the state, each acts according to the best interests of the client with no
obligation to the mission of the state.” Id. (quotation marks and citation omitted).
For the same reasons, court-appointed administrators, guardians, or conservators for
adults—like Ms. Patchey in this case—do not act under color of state law. See, e.g. Terry v. Cty.
of Suffolk, N.Y., 654 F. App’x 5, 5-6 (2d Cir. 2016) (summary order) (“[G]uardian, who was
appointed by a state court for an elderly woman,” could not be sued under Section 1983, because
he “was required by Mental Hygiene Law to act in the best interests of [the elderly woman] and is
not a state actor.”); Mitchell v. Connecticut Region 14 Dist. Prob. Court, 2015 WL 4094188, at *5
(D. Conn. July 7, 2015) (“Despite the fact that various defendants were alleged to have been
appointed by the probate court as trustees or administrators of the living trust, this does not suffice

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to establish that their subsequent actions constituted state action for purposes of liability under
Section 1983.”); Sasscer v. Barrios-Paoli, 2008 WL 5215466, at *5 (S.D.N.Y. Dec. 8, 2008)
(“Complaint alleges that [Defendants] were appointed as Plaintiff's guardians ad litem… and that
[they] violated due process when they filed 4 years of Plaintiff's tax returns…But, guardians ad
litem, although appointed by the court, exercise independent professional judgment in the interests
of the clients they represent and are therefore not state actors for purposes of Section 1983.”
(quotation marks and alterations omitted)); Rzayeva v. United States, 492 F. Supp. 2d 60, 81 (D.
Conn. 2007) (“Because a court-ordered conservator exercises independent professional judgment
in the interest of his client, he cannot be considered a state actor…. The fact that an individual is
appointed by the state and paid with state funds is insufficient to render an individual a state
actor.”).
Here, Ms. Patchey was an emergency temporary guardian appointed by the Florida Circuit
Court, with a duty to “faithfully perform the duties of a guardian” for the period of her
appointment. Fla. Stat. § 744.3031; ECF No. 17-2 at 5. See also In re Guardianship of Beck, 204
So. 3d 143, 148 (Fla. Dist. Ct. App. 2016) (“The fact that the statutory title… is ‘emergency
temporary guardian’ … establish[es] that unless or until a plenary or limited guardianship is
established or the emergency temporary guardianship expires, Ms. Yates is a guardian.”). In
Florida, guardians are required to “act as they feel the wards themselves would act. This
[‘substituted judgment’] standard places the guardian in the shoes of the ward when making
decisions.” Rainey v. Guardianship of Mackey, 773 So. 2d 118, 121-22 (Fla. Dist. Ct. App. 2000).
As Mr. Heinemann’s emergency temporary guardian, Ms. Patchey allegedly attempted to control
his financial accounts and requested assistance from local law enforcement to move him to Florida.

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(ECF No. 1 ¶¶ 7-9.)3 In taking those actions, although Ms. Patchey may have been “supplied and
funded by the state,” her duty as emergency temporary guardian was to act on behalf of Mr.
Heinemann, “with no obligation to the mission of the state.” Milan¸808 F.3d at 964. 4
Therefore, it does not appear that Ms. Patchey acted or is acting under color of state law in
her role as emergency temporary guardian, and Plaintiffs have failed to demonstrate either a
likelihood of success of the merits or sufficiently serious questions going to the merits of their
claims to make them fair grounds for litigation. Otoe-Missouria, 769 F.3d at 110.5
IV.

Conclusion
For the foregoing reasons, the motion for preliminary injunction (ECF No. 10) is DENIED.

IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
March 24, 2017

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I note that the affidavits attached to the motion for preliminary injunction do not directly state
that Ms. Patchey in fact contacted local police, and nowhere do the plaintiffs claim that the
police—who are state actors—took any action to assist Ms. Patchey.
Plaintiffs also argue that “[t]he basis of this litigation is the fact that the Defendant has exceeded
and abused any authority the Florida court appointment may have granted her by acting outside
the jurisdiction of Florida and inside the jurisdiction of Connecticut and other states.” (ECF No.
24 at 3.) If true, this only confirms that Ms. Patchey was not acting under color of state law.
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Having made this finding, I need not consider whether plaintiffs have shown they will suffer
irreparable harm, though I note that both the Florida court’s stay on Ms. Patchey’s temporary
emergency guardian appointment and the Connecticut court’s decision to allow Ms. Voigt to
withdraw Mr. Heinemann’s funds from Liberty Bank weaken plaintiffs’ arguments on that issue.
I also need not reach Ms. Patchey’s arguments regarding the applicability of the Anti-Injunction
Act, 28 U.S.C. § 2283, or various abstention doctrines. (See ECF No. 25 at 4-6.)
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