Johnson v. Georgia Department of Behavioral Health and Developmental Disabilities

Filing 56

ORDER denying 40 Motion for Hearing; dismissing 48 Motion for Protective Order. Signed by Magistrate Judge James E. Graham on 12/19/18. (jrb) Modified on 12/20/2018 (jrb).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
REGINALD V. JOHNSON, II,
Plaintiff,
v.
JUDY FITZGERALD,
COMMISSIONER, GEORGIA
DEPARTMENT OF BEHAVIORAL
HEALTH AND DEVELOPMENTAL
DISABILITIES,
Defendant.

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FILED
Scott L. Poff, Clerk
United States District Court

By jburrell at 10:23 am, Dec 20, 2018

CV418-50

ORDER AND REPORT AND RECOMMENDATION
Reginald Johnson, acting through his mother, Ella Johnson, has
filed a Complaint seeking injunctive relief arising from the withdrawal (or
threat of withdrawal) of financial support by the Georgia Department of
Behavioral Health and Developmental Disabilities (the “Agency”). Doc. 1
at 2; doc. 10 at 3. The Court performed the preliminary screening required
by 28 U.S.C. § 1915(e)(2), recommending that Ella be provisionally
designated as his guardian ad litem, dismissing the originally-named state
agency and his claim for punitive damages, and directing the United States

1

Marshall to serve his Complaint on Commissioner Fitzgerald, in her
official capacity. See doc. 12.
Johnson timely objected to the recommendation that his claims for
damages be dismissed. Doc. 14. The recommendations were adopted, over
those objections, by the District Judge. Doc. 16. Johnson then filed a
notice of appeal.1

Doc. 18.

While the appeal was pending, the

Commissioner answered, doc. 23, and Johnson filed a “motion” seeking an
injunction directing the Commissioner to reinstate the disputed benefits.
Doc. 27. He now seeks an “expedited” ruling on that motion, and objects
to the Court’s granting a leave of absence to defense counsel. Doc. 37. The
Court entered a Scheduling Order. Doc. 38. Johnson filed a motion for a
“pre-scheduling order hearing,” to address her “Request to Expedite

1

In many circumstances, the filing of a notice of appeal divests the district court of
jurisdiction. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)
(“The filing of a notice of appeal is an event of jurisdictional significance – it confers
jurisdiction on the court of appeals and divests the district court of its control over
those aspects of the case involved in the appeal.”). Out of an abundance of caution, the
Court withheld disposition of motions filed after the notice of appeal. The Court of
Appeals found that it lacked jurisdiction over the matter, as the order appealed from
was not final. See doc. 28. Given that finding, it appears that this Court was never
divested of its jurisdiction. See Griggs, 459 U.S. at 58 (citing Ruby v. Secretary of the
United States Navy, 365 F.2d 385, 389 (9th Cir. 1966) (noting “notice of appeal from
unappealable order does not divest district court of jurisdiction”). Plaintiff’s report of
the parties’ recent conference indicates that Johnson has filed a motion for
reconsideration of that ruling. See doc. 33 at 3.
2

Injunction Order.” Doc. 40. This Order addresses that request, among
other issues.
A hearing on Johnson’s request for an “expedited” disposition of his
request for an injunction is not necessary.

The Georgia Attorney

General’s Office, representing Fitzgerald, construed that request as a
request for a preliminary injunction. Doc. 41. The Court agrees with that
interpretation. 2 The Court further agrees with defendant’s argument that
Johnson’s filings, to date, are inadequate to establish his entitlement to
such extraordinary relief. See, e.g., McDonald’s Corp. v. Robertson, 147
F.3d 1301, 1306 (11th Cir. 1998) (“In this Circuit, a preliminary injunction
is an extraordinary and drastic remedy not to be granted unless the
movant clearly established the ‘burden of persuasion’ as to the four
requisites.” (quotes and cites omitted)). On the contrary, the defendant’s

2

The nature of Johnson’s request is not entirely clear because his representative
apparently takes the position that the claims are sufficiently developed for the Court
to enter judgment in his favor. See doc. 37 at 2; see also doc. 29 at 3 (stating that
“Plaintiff’s representative questions [the] need for discovery as the issue being brought
in [the] complaint is one of due process for Medicaid which has been established by law
and case precedent.”). Regardless of Ella’s contentions, the Court does not summarily
decide cases without allowing both parties an opportunity to conduct discovery and be
heard on the merits. The Federal Rules provide for limited remedies before judgment.
See Fed. R. Civ. P. 65. Given that Johnson’s filings suggest an argument for a
preliminary injunction, i.e. that Johnson is presently suffering harm from the
Commissioner’s withholding of “self-directed” benefits, doc. 27, the Court agrees with
the Commissioner that his motions are best construed as requests for a preliminary
injunction directing the reinstatement of the disputed benefits.
3

brief presents facially persuasive arguments that Johnson cannot bear
that extraordinary burden. See doc. 41.
For the reasons discussed more fully below, the Court questions
whether Johnson could demonstrate his entitlement to injunctive relief.
It is clear that, to date, he has not. A plaintiff seeking a preliminary
injunction must establish (1) a substantial likelihood of success on the
merits of his claim; (2) irreparable injury unless the injunction issues;
(3) that the threatened injury to the moving party outweighs whatever
damage the proposed injunction may cause the opposing party; and
(4) that the sought injunction would not be adverse to the public interest.
See Robertson, 147 F.3d at 1306. Johnson’s injunction-related filings do
not establish either his substantial likelihood of success or that he will
suffer an irreparable injury if an injunction immediately reinstating the
disputed benefits is not issued. See doc. 2; doc. 27; doc. 37; doc. 42. They
do not even discuss the balance of harm or the public interest. See id.; but
see doc. 42 at 3-4 (asking, rhetorically, “how does the quality of human life
not outweigh any other earthly consideration?” and protesting that the
assertion that “this is NOT a public issue is baffling,” and speculating
about the possibility that “others [may have been] denied [their] civil
4

rights to due process because that individual did not know any better or
did not have the means to fight back”). Although the Court construes
Johnson’s pleadings liberally, that liberality does not exempt him from the
applicable procedural rules, and it most certainly does not expand his
substantive rights. See Clark v. Bibb Cty. Bd. of Educ., 174 F. Supp. 2d
1369 (M.D. Ga. 2001) (citing Wayne v. Jarvis, 197 F.3d 1098, 1104 (11th
Cir. 1999), overruled on other grounds by Manders v. Lee, 338 F.3d 1304
(11th Cir. 2003)); Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990);
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1999)) (“[T]he general rule
of liberal construction does not require courts to exempt pro se litigants
from complying with the requirements imposed by the relevant rules of
procedure and substantive law.”). To the extent that Johnson seeks a
preliminary injunction directing the Commissioner to immediately
reinstate the disputed benefits, his motions should be DENIED. Doc. 2;
doc. 27; doc. 37. His request for a hearing on the issue is, therefore,
DENIED as moot. Doc. 40.
The parties’ filings raise several further issues that must be resolved.
In its Report and Recommendation authorizing service of the Complaint,
the Court provisionally approved Ella to serve as plaintiff’s guardian ad
5

litem in this matter. Doc. 12 at 6-7. The Court noted, however, that an
apparent conflict of interest between plaintiff and Ella might require it to
revisit that approval. Id. at 7. Commissioner Fitzgerald, in her answer
and brief opposing a preliminary injunction, specifically disputes Ella’s
suitability as guardian ad litem. See doc. 23 at 4; doc. 41 at 6-7. In
response to the Commissioner’s Answer, Ella protests that she is suitable,
based on her affection for her child and her concern that he might “be
deprived just because he is incapable of making the request [that his
benefits be restored].” Doc. 25 at 3. Her suitability to serve as Plaintiff’s
representative, however, does not turn on her affection for him or her
devotion to his care.
The propriety of Ella’s representation of plaintiff depends, in the
first instance, on whether she has been legally appointed as plaintiff’s
guardian. See Fed. R. Civ. P. 17(c)(1); see also Sam M. ex rel. Elliott v.
Carcieri, 608 F.3d 77, 85 (1st Cir. 2010) (“[W]here a minor or incompetent
is represented by a general guardian or a duly appointed representative,”
the Federal Rules’ provisions for designating a guardian ad litem need not
be applied). If he has another duly appointed representative, the Court
would consider whether that individual were better situated to pursue his
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interests in this matter. Even if she were duly appointed, however, the
Court has the power “‘to authorize someone other than a lawful
representative to sue on behalf of an infant or incompetent person where
that representative is unable, unwilling or refuses to act or has interests
which conflict with those of the infant or incompetent.’” Id. (quoting Ad
Hoc Comm. of Concerned Teachers v. Greenburgh No. 11 Union Free Sch.
Dist., 873 F.2d 25, 29 (2d Cir 1989)). “The minor’s best interests are of
paramount importance” in making the determination. Id.
The Court is particularly concerned by the Commissioner’s
contention that it has not “withdrawn” any benefits from plaintiff, it has
merely insisted that he receive those services from a provider other than
Ella’s sister. See, e.g., doc. 23 at 8. Any disruption in the provision of
services, she thus contends, is attributable to Ella’s refusal to choose a
non-familial caregiver and not to any action or lack of it by the
Department. See doc. 33 at 8 (asserting “Plaintiff need not experience any
lapse in service during the pendency of this litigation. Community-based
services are fully available to Plaintiff under the applicable Medicaid
waiver program, but Ms. Johnson has actively refused to select any of the
community care providers offered by [the Department] for care of
7

Plaintiff.”); see also doc. 12 at 6 (noting the Court’s concern that Ella is
not a suitable representative because “she might be less inclined to accept
a resolution that does not protect her sister’s income (and given that her
sister lives with her, it seems possible that some portion of that income
might go to Ella, albeit mediately).”). Although the Court appreciates
Ella’s contention that the services offered are not adequate substitutes for
the services Reginald was receiving, see doc. 39 at 1, the fact that she
considers no services preferable to some services, even if defective,
emphasizes her potential conflict of interest.
In addition to the question of Ella’s suitability to act as plaintiff’s
representative, further questions have arisen concerning the viability of
his claim. In a recent filing, Johnson contends that “due process is the
core of this complaint.” Doc. 37 at 2. The cited cases, however, make clear
that not every withdrawal or refusal of public benefits violates a recipient’s
due process rights. See K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 972
(9th Cir. 2015). None of the cases that plaintiff has cited, and none that
the Court is aware of, establish that a benefit recipient has a sufficient
interest in a particular method of service-delivery to support a due process
challenge. Although defendant’s brief opposing the preliminary injunction
8

touches tangentially on the nature of Johnson’s claim, in arguing that he
has not established the likelihood of success necessary, defendant has not
moved to dismiss or challenged his standing. See doc. 41 at 9-12.
The nature of Plaintiff’s claim matters because it calls into question
his standing, whether litigated through a guardian ad litem or otherwise,
to prosecute this case. See, e.g., Gonzalez ex rel. Gonzalez v. Reno, 86 F.
Supp. 2d 1167, 1181 (S.D. Fla. 2000) (noting, despite terminological
similarity, a “[p]laintiff’s standing is a distinct inquiry from that of [his
guardian’s] capacity to act as Plaintiff’s next friend [or guardian ad
litem].”). Standing is a component of the Constitution’s limitation of
federal judicial power to “cases” and “controversies.” See Allen v. Wright,
468 U.S. 737, 750 (1984). As an aspect of this constitutional limitation,
standing determines this Court’s jurisdiction. It cannot be waived by any
party and the Court has an obligation to raise the issue on its own motion,
if necessary. See Bischoff v. Osceola Cty., Fla., 222 F.3d 874, 877-78 (11th
Cir. 2000) (as the Supreme Court made clear in United States v. Hays, 515
U.S. 737[, 742] . . . (1995), “[t]he question of standing is not subject to
waiver . . . . ‘The federal courts are under an independent obligation to

9

examine their own jurisdiction, and standing is perhaps the most
important of [the jurisdictional] doctrines.’”).
To establish standing, “for purposes of . . . procedural due process[3]
claims, plaintiffs must show that they had an identifiable personal stake
in the property [or liberty] rights at issue.” Santiago-Ramos v. Autoridad
de Energia Electrica de Puerto Rico, AEE, 834 F.3d 103, 106 (1st Cir. 2016)
(footnote added); see also Doe v. Florida Bar, 630 F.3d 1336, 1342 (11th
Cir. 2011) (plaintiff alleging due-process violation must allege “a
deprivation of a constitutionally-protected liberty or property interest;
state action; and constitutionally inadequate process.”); Royal Oak
Entertainment, L.L.C. v. City of Royal Oak, 316 F. App’x 482, 486 (6th Cir.
2009) (“This Court has consistently held that a plaintiff who brings a . . .
procedural due process claim must identify a protected liberty or property
interest.” (cite omitted)).

Further, the assertion that a due-process

violation has occurred is not a factual allegation the Court is required to

3

The legal authorities cited below are scrupulous in identifying the claim at issue as
a denial of “procedural due process,” to distinguish it from deprivations of “substantive
due process.” The location of certain substantive constitutional protections, for
example the right to privacy against government intrusion into certain intimate areas
of life in the Fifth and Fourteenth Amendments’ due process clauses, is a legal
minefield the Court is, mercifully, not required to cross in this case. Since there is no
plausible implication of any substantive due process issue here, the Court will refer to
the claim as simply one for denial of “due process.”
10

credit. See Lord Abbett Mun. Income Fund v. Tyson, 671 F.3d 1203, 1207
(11th Cir. 2012) (citing Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th
Cir. 2010) (“We are not required to accept as true the [plaintiff’s] legal
conclusion that a Fourteenth Amendment violation occurred.”)).
The Supreme Court has held that no constitutionally-protected
liberty or property interest supported nursing home residents’ suit
seeking a hearing before their home’s Medicaid funds were terminated.
See O’Bannon v. Town Court Nursing Center, 447 U.S. 773, 784 (1980).
O’Bannon rejected the both the argument that the residents had “a
property right to remain in the home of their choice absent good cause for
transfer,” and that the emotional and physical consequences of their
transfer were “tantamount to a deprivation of liberty.” Id. The Court
noted that “since decertification [of a particular home] does not reduce or
terminate a patient’s financial assistance, but merely requires him to use
it for care at a different facility, regulations granting recipients the right
to a hearing prior to a reduction in financial benefits are irrelevant.” Id.
at 786 (emphasis added). Although more qualified, it also found that an
administrative determination, directed against a third party, does not
implicate due process.

The Court analogized the effect of the
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government’s decision to withhold public funds from a particular provider
to the revocation of a provider’s license. Id. at 787. Similarly, whether
the Department will continue to compensate Ella’s sister for the care she
provides to plaintiff arguably “does not turn the [refusal] into a
governmental decision to impose [the] harm” that such cessation would
cause. See id. at 789.
If, as defendant contends, O’Bannon stands for the proposition that
“[t]here is no constitutional right to a hearing prior to [a determination
that a particular benefit provider is not eligible under the applicable
program],” then Johnson lacks standing to pursue a due-process claim.
Plaintiff’s argument that O’Bannon is distinguishable because “it was
NEVER established that the services received from one nursing facility
could not be provided by another nursing facility,” doc. 42 at 3, fails to
address the Court’s discussion of the resident’s purported liberty interest.
The Court expressly considered the harm residents faced because they
“may have difficulty locating other homes they consider suitable or may
suffer both emotional and physical harm as a result of the disruption
associated with their move.” O’Bannon, 447 U.S. at 787 (emphasis added).
Despite those harms, the Court concluded, “while they might have a claim
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against the [care provider, depending on the nature of the parties’ contract
and applicable state law,] for damages, none would have any claim against
the responsible governmental authorities for the deprivation of an interest
in life, liberty, or property.” Id. (emphasis added). As discussed below,
plaintiff’s further briefing on this issue must identify a relevant dueprocess-protected interest, and, if necessary, explain how O’Bannon’s
conclusion that (1) a claimant’s determination of the “suitability” of
alternative providers and (2) the “physical and emotional harm” caused
by the necessity of changing providers are not sufficient to confer standing
does not resolve this question. 4
The legal status of Reginald’s prospective injuries can, alternatively,
cast doubt on the claim’s substantive adequacy. Since he is proceeding in
forma pauperis, the Court has an obligation to dismiss the case “at any
time if [it] determines that . . . the action . . . fails to state a claim on which

4

Among the arguments raised in plaintiff’s recent briefs, the Court wishes further
argument on the question of whether the Department’s previous approval of Ella’s
sister as a service provider could affect whether he has a due-process interest in her
continued provision of services. In particular, the parties must address the Supreme
Court’s recognition that, while a statutory provision of benefits may grant a recipient
“a right to continued benefits to pay for care [from an approved provider, he has no
enforceable expectation of continued benefits to pay for care [from a provider] that has
been determined to be unqualified,” O’Bannon, 447 U.S. at 786 (emphasis added),
resolves the question.
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relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii); see also Fortson v.
Georgia, 601 F. App’x 772, 774 (11th Cir. 2015) (noting that “[a] judge’s
authority to dismiss sua sponte a complaint . . . is provided for, even
mandated, by” § 1915(e)(2)(B)’s subsections); Shell v. Foulkes, 362 F.
App’x 23, 26 (11th Cir. 2010) (§ 1915 “serves an important gate-keeping
function by requiring the district court to sua sponte dismiss an action that
fails to state a claim on which relief may be granted.”).
Although the Court authorized service of the Complaint, the
Commissioner’s subsequent filings and Ella’s responses to them have cast
considerable doubt on the viability of Reginald’s claim. They have clarified
that it is based on an alleged violation of his right to due process. As
discussed above, such a claim requires, as an essential element, an
allegation that the plaintiff has been deprived of a constitutionally
protected liberty or property interest without due process. His subsequent
pleadings appear to concede that the Department has not refused to
provide benefits, nor has it reduced or proposed reduction of the benefits
he receives. Rather, the parties dispute whether Reginald may direct those
benefits to a particular provider, i.e. Ella’s sister. His further contention
that, in the particular factual context of this case, those services could not
14

be replaced by otherwise comparable services from another provider, does
not establish that his interest in securing the benefits of continued service,
or

avoiding

the

harms

associated

with

changing

providers,

is

constitutionally protected. In the absence of such an allegation, Reginald’s
claim substantively fails, even if he has standing to assert it.
Since both the question of Ella’s suitability as representative and the
question of whether any of Reginald’s constitutionally protected rights has
been violated must be resolved before this case can proceed, the Court will
proceed in the following order. Since the question of Ella’s suitability is
moot if Reginald lacks a constitutionally protected interest in the dispute
at issue, the Court will first consider that question. The parties are
DIRECTED to submit written arguments on the existence and nature of
the right asserted within thirty days of the date of this Order.
In order to ensure that the parties’ arguments are properly focused,
the Court wishes to emphasize that a legal proceeding is not a
determination of value or importance. Many of plaintiff’s filings to date
have emphasized the clear emotional stakes of this case. The Court does
not doubt Ella’s sincerity in those statements, and does not minimize the
potential consequences plaintiff may face if the Department determines
15

that he cannot continue to receive the care he has received. Nevertheless,
the legal questions before the Court cannot be determined on the basis of
such considerations. The question of plaintiff’s standing is no more and
no less than whether the law recognizes his right to continue to receive
services in the manner he has been receiving them.
The remaining issues in this case, Ella’s suitability and her concerns
about the applicable deposition procedures, will only be addressed if
plaintiff’s standing and the viability of his claim is established. Pending
resolution of those issues, all discovery in this case is STAYED. If the
case proceeds, plaintiff, through his duly-appointed representative, may
refile any motions deemed necessary.

The Clerk is DIRECTED to

TERMINATE the pending motion. Doc. 43.
Finally, Ella has filed a “Motion for Protective Order” asserting
objections to several of the Commissioner’s discovery requests. Doc. 48.
This motion is premature and fails to comply with either the Federal
Rules’ or this Court’s Local Rules’ pre-filing requirements. Both the
Federal and Local Rules require that the parties attempt to resolve any
discovery dispute without the Court’s intervention before any party files a
discovery motion. See Fed. R. Civ. P. 26(c)(1) (requiring “a certification
16

that the movant has in good faith conferred or attempted to confer with
other affected parties in an effort to resolve the dispute without court
action.”); S.D. Ga. L. Civ. R. 26.5. Because Johnson has not complied with
those requirements, his motion is DISMISSED. Doc. 48. He is, however,
free to refile any discovery motion he deems appropriate (after the stay is
lifted), subject to compliance with the Rules’ requirements. The Court
advises Johnson, and his representative, that pressing meritless objections
may subject him to the Federal Rules’ mandatory fee shifting provisions.
See Fed. R. Civ. P. 26(c)(3), 37(a)(5). In plain English: if Johnson pursues
meritless discovery objections through a motion for protective order, he
and his representative may be required to pay any reasonable legal fees
the Commissioner incurs in responding to that motion. The Court advises
Ella to apprise herself of the applicable case law concerning the scope of
viable objections based on relevance 5 or undue burden.
5

In particular, the Court advises her that “immaterial” or “irrelevant,” in the
discovery context does not encompass any subject that the party responding to the
discovery requests (i.e., Ella) thinks is irrelevant to the claims as she conceives them.
As this Court has explained:
The discovery standard for relevance is quite liberal. In fact, the higher, trial
“standard for what constitutes relevant evidence [itself] is a low one: evidence
is relevant if it has ‘any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.’ Fed. R. Evid. 401.” United States v.
Tinoco, 304 F.3d 1088, 1120 (11th Cir. 2002). . . . So Rule 26, “quite simply,
17

In summary, plaintiff’s request for a preliminary injunction should
be DENIED. Doc. 2; doc. 27; doc. 37. Her request for a hearing on the
appropriateness of such an injunction is DENIED. Doc. 40. Within thirty
days, the parties each must submit their arguments concerning the
existence and nature of the constitutionally protected right at issue.
Pending resolution of that issue, all discovery deadlines in this case are
STAYED until further Order from the Court. The Clerk is DIRECTED
to TERMINATE his pending discovery motion.

Doc. 43.

Plaintiff’s

Motion for a Protective Order should be DENIED, subject to refiling
pending a lifting of the stay and plaintiff’s satisfaction of the pre-filing
conditions.
SO ORDERED and REPORTED AND RECOMMENDED, this
19th day of December, 2018.

sets for a very low threshold for relevancy, and thus, the court is inclined to err
in favor of discovery rather than against it.”
McCleod v. Nat’l R.R. Passenger Corp., 2014 WL 1616414 at * 3 (S.D. Ga. 2014)
(some citations omitted). Plaintiff, however, has the same opportunity to
investigate defendant’s claims in her own discovery.
18