SMITH v. HUNTINGTON COMMON

Filing 8

ORDER ON REQUESTS FOR EMERGENCY INJUNCTIONS - denying 3 Motion for Emergency Injunction ; denying 3 Motion for Order. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ELIZABETH SMITH,
PLAINTIFF
V.

ROBERT P. SMITH AND
CYNTHIA W. SMITH,
DEFENDANTS
_____________________________________
ELIZABETH SMITH,
PLAINTIFF
v.
HUNTINGTON COMMON,
DEFENDANT

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CIVIL NO. 2:16-CV-161-DBH

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CIVIL NO. 2:16-CV-164-DBH

ORDER ON REQUESTS FOR EMERGENCY INJUNCTIONS
These two cases appear to arise out of a family conflict over the care and
assets of an elderly, ailing, widowed mother. The plaintiff, who is proceeding pro
se, is one of her daughters.

She has filed two handwritten complaints, one

against two of her siblings (one brother and one sister), and another against the
“assisted living, nursing place” where her mother resides. The two complaints
and their respective attachments are identical, as far as I can discern. Although
it is difficult to decipher all that she has written, she appears to assert that the
facility is mistreating her mother in a variety of ways and that her mother wants

to be released to live with her. She also appears to assert that her siblings are
improperly selling or destroying assets that belong to her mother and/or to her.
The plaintiff says that she herself suffers from multiple disabilities and dyslexia,
including difficulties in writing, severe struggles with language processes, some
difficulty with communication, high distractibility, and mobility issues. In each
case she has filed a “Request for Emergency Injunctions/Order & Relief from
Abuse, Neglect, etc.” (ECF No. 3.) She asks “to Waive Service of Process due to
Immediacy & Urgency and Safety etc.,” ECF No. 3-1, and, asserting difficulties
with writing and language processes, asks to appear in court in person, “waiving
some of the writing process” “for an immediate Injunction and relief from abuse,
neglect, etc.,” ECF No. 3. She sounds frightened and frantic.
She asserts subject matter jurisdiction based upon diversity of citizenship
and raises many constitutional claims under both the United States and Maine
Constitutions. It is not yet apparent that there is diversity of citizenship (she
says that she and/or her mother have homes in Maine, Vermont, and Florida),
and it is unclear how she has constitutional claims since her claims are against
private parties, not against the state or federal government.

Moreover, it is

unclear from what she has presented whether she has standing to assert claims
of abuse and neglect on behalf of her mother. It is also unclear that the plaintiff
has any claims for discrimination against herself under federal or state statutes.
What is before me now for judicial action is her “Request for Emergency
Injunctions/Order & Relief from Abuse, Neglect, etc.” in both cases, i.e., against
both her siblings and the facility. I have no authority to grant such relief on
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what she has presented. Under Federal Rule of Civil Procedure 65(b)(1), a federal
court may grant injunctive relief without notice to an adverse party only if the
plaintiff “certifies in writing any efforts made to give notice [to opposing parties]
and the reasons why it should not be required,” as well as “specific facts in an
affidavit or a verified complaint clearly show[ing] that immediate and irreparable
injury, loss, or damage will result to the movant before the adverse party can be
heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A), (B). The plaintiff has not done
so. So even if she is somehow able to proceed without serving process, able to
demonstrate that this court has subject matter jurisdiction over her claims, and
able to demonstrate that she can sue on behalf of her mother, the request for
emergency relief still requires her to certify in writing that she at least attempted
to give notice to her siblings and the facility of her request for injunctive relief
and explain to the court why notice should not be required. The rule is clearly
designed to allow the defendants to present their side of the story to the court, if
at all feasible, before any emergency relief issues.

See 11-A CHARLES ALAN

WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE

AND

PROCEDURE

§ 2952 (3d ed. 2013). The plaintiff asks to meet with me in person, but federal
judges cannot meet with a party ex parte (i.e., in the absence of opposing parties)
except in very limited circumstances, and those circumstances are not present
here.
Accordingly, at this time I must DENY the plaintiff’s “Request for
Emergency Injunctions/Order & Relief from Abuse, Neglect, etc.” in both cases.
The plaintiff’s and her mother’s plight as she describes it is serious. But she
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faces substantial legal hurdles in pursuing her two cases in federal court. I point
out to her, therefore, that in Maine there are legal aid services that could
potentially assist her—at the very least to explain the various procedural
obstacles. The plaintiff could consult with the following entities:


Disability Rights Maine website: http://www.drme.org
Phone: [phone];



Legal Services for the Elderly website: http://www.mainelse.org
Phone: [phone];



Pine Tree Legal Assistance website: http://www.ptla.org
Phone: [phone];

I also note that there is a website that lists Maine state officials to whom
allegations

of

nursing

home

abuse

or

neglect

can

be

reported.

http://www.nursinghomepatientrights.com/Maine_Nursing_Home_Abuse_Assistance.htm.

SO ORDERED.
DATED THIS 15TH DAY OF MARCH, 2016
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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