Johnson v. Georgia Department of Behavioral Health and Developmental Disabilities

Filing 4

ORDER directing the Clerk to send Plaintiff a blank IFP motion. Plaintiff must supplement the 3 MOTION for Leave to Proceed in forma pauperis filed by Reginald V. Johnson, II within 14 days of this Order. (Compliance due by 3/29/2018). Signed by Magistrate Judge G. R. Smith on 3/15/18. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
REGINALD V. JOHNSON, II,

)
)
Plaintiff,
)
)
v.
)
)
GEORGIA DEPARTMENT OF
)
BEHAVIORAL HEALTH AND
)
DEVELOPMENTAL DISABILITIES, )
)
Defendant.
)

CV418-50

ORDER

Pro se plaintiff Reginald Johnson files this action challenging an

adverse decision concerning his state-provided disability services.1 Doc. 1

1

Although the Court needs additional information before proceeding to consider the
substantive issues in this case, it is not convinced that plaintiff has stated a viable
claim. First, it appears that claims for money damages, including punitive damages,
against the State of Georgia, or its agencies, are precluded by the Eleventh
Amendment and the State’s sovereign immunity. See, e.g., CHARLES ALAN WRIGHT,
ARTHUR R. MILLER, et al., 13 FED. PRAC. & PROC. JURIS § 3524 (3d ed. 2017) (since
1890 federal courts have recognized that states are not subject to suit in federal court
for damages). Injunctive relief may be available under the exception recognized in Ex
parte Young. See, e.g., 209 U.S. 123 (1908); Rosie D. ex rel. John D. v. Swift, 310 F.3d
230, 237-38 (1st Cir. 2002) (holding “that the Eleventh Amendment does not prevent
Medicaid beneficiaries from seeking prospective injunctive relief against state
officials in a federal court.”). Despite the existence of the exception, it is not clear
that Johnson’s pleading is sufficient to establish its application. See, e.g., Seminole
Tribe of Fla. v. Florida Dept. of Revenue, 750 F.3d 1238, 1243-44 (11th Cir. 2014)
(explaining that plaintiff could not avoid Eleventh Amendment / sovereign immunitybased defense by characterizing a suit to recover money damages as a suit for
injunctive relief); Summit Medical Assocs, P.C. v. Pryor, 180 F. 3d 1326, 1337 (11th

at 2. He seeks both injunctive (a “Writ of Mandamus”) and monetary
relief. Id. at 2-3. He also seeks to proceed in forma pauperis (IFP). Doc.
3.
Johnson must supplement his IFP motion. The Court grants IFP
status if a plaintiff demonstrates that he cannot, because of his poverty,
afford to pay the costs of litigation and still provide for himself and any
dependents.

See 28 U.S.C. § 1915(a)(1); Adkins v. E.I. Dupont de

Nemours, 335 U.S. 331, 339-40 (1948); Martinez v. Kristi Kleaners, Inc.,
364 F.3d 1305, 1307 (11th Cir. 2007).

While a plaintiff need not be

absolutely destitute in order to proceed IFP, the fact that financing his
own litigation may cause some difficulty is not sufficient to relieve a
plaintiff of his obligation to pay his own way where it is possible for him
to do so without undue hardship. Adkins, 335 U.S. 339-40.
Johnson’s IFP motion states that he receives disability payments
and has “other sources” of income. Doc. 3 at 1. The motion purports to
attach a “disability check and child support payments,” but no such
document is attached. Id. His listed expenses include expected items
like food and medication (“herbal supplements”), but also “rent

Cir. 1999) (noting limitations of Ex parte Young exception).
Despite those
substantive concerns, the questions concerning Johnson’s IFP request must be
resolved first.
2

assistance.” Id. at 2. It is unclear whether he receives such assistance, in
which case it should be listed as income, or provides such assistance. In
either case, the amount is relevant to the Court’s evaluation of his IFP
request. Finally, he states that he has $517 in cash or in a checking or
savings account. Id. It is thus possible that Johnson is indigent, but he
must clarify his income and expenses. Accordingly, he must supplement
his IFP motion within 14 days, providing all of the information
requested on the Court’s form, or pay the filing fee.

The Clerk is

DIRECTED to send a blank IFP motion form with this Order for
Johnson’s convenience.
Additionally, Johnson’s Complaint states that “[a]s a result of
plaintiff’s severe impairments and delays, [he] is requesting that his
mother, Ella Johnson, be allowed to speak and represent on his behalf to
the court.” Doc. 1 at 1. The law is clear, however, that a non-attorney
parent “has no right to represent a child in an action in the child’s
name.” Whitehurst v. Wal-Mart, 306 F. App’x 446, 449 (11th Cir. 2008).
“The right to appear pro se . . . is limited to parties conducting ‘their own
cases,’ and does not extend to non-attorney parties representing the
interests of others. Consequently, we have held that ‘parents who are

3

not attorneys may not bring a pro se action on their child’s behalf.’”
FuQua v. Massey, 615 F. App’x 611, 612 (11th Cir. 2015) (quoting Devine
v. Indian River Cnty. Sch. Bd., 121 F. 3d 576, 581 (11th Cir. 1997),
overruled in part on other grounds by Winkelman ex rel. Winkelman v.
Parma City Sch. Dist., 550 U.S. 516, 535 (2007)). Thus, while it is clearly
permissible for Johnson’s mother to informally assist him in preparing
his pleadings, and she might even provide interpretive services should an
oral presentation be necessary, she may not make decisions about how
the case is conducted.2
In summary, within 14 days of the date of this Order, Johnson
must supplement his motion to proceed IFP, providing a complete
statement of his income and expenses. Failure to comply with this
Order will result in a recommendation of dismissal on
abandonment grounds. See Fed. R. Civ. P. 41(b).

2

If the statement of impairment is intended, not just to notify the Court that she
intends to informally help her son, but to plead his legal incompetence, a different
issue is presented. If Johnson’s mother contends that he is not competent to control
the conduct of this case, she should so notify the Court. Such notice, or other
indication that Johnson is not competent, triggers the Court’s responsibility and
authority under Fed. R. Civ. P. 17(c). Cf. Berrios v. New York City Housing Auth.,
564 F.3d 130, 135 (2d Cir. 2009) (“Where the owner of a claim is a minor or
incompetent person, therefore, unless that claimant is properly represented by a
guardian ad litem, next friend, or other suitable fiduciary, and that representative
either is, or is represented by, an attorney, the court should not issue a ruling as to
whether the complaint states a claim on which relief may be granted.”).
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SO ORDERED, this 15th day of March, 2018.

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