Bingham v. Marker et al

Filing 19

MEMORANDUM AND ORDER - The defendants' motion to dismiss (filing 15 ) is denied without prejudice as set forth above. Pursuant to Rule 17(c) and Section II(A)(1)(c) of the Amended Federal Practice Fund Plan and the Federal Practice Committee Pl an (as adopted Dec. 29, 2021), the Court appoints Michael T. Brogan of Brogan & Stafford P.C., 1400 N. 9th St., P.O. Box 667, Norfolk, Nebraska, 68702-0667, as guardian ad litem for the plaintiff to investigate this matter and submit a report to the Court by March 1, 2022, or as soon thereafter as practicable. Expenses and attorney's fees shall be paid from the Federal Practice Fund under the Amended Federal Practice Fund Plan and the Federal Practice Committee Plan (as adopted Dec. 29, 202 1). Counsel is particularly directed to Section VI, which explains how to seek reimbursement. The defendants' deadline to file a responsive pleading or otherwise respond to the plaintiff's complaint is extended to March 21, 2022. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(LKO)

8:21-cv-00288-JMG-MDN Doc # 19 Filed: 01/10/22 Page 1 of 3 - Page ID # 88

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHRIS BINGHAM,
Plaintiff,

8:21-CV-288

vs.
MEMORANDUM AND ORDER
BRITTANY MARKER and LARRY
SOHLER, in their individual
capacities,
Defendants.
The plaintiff, Chris Bingham, filed a pro se complaint for violation of his
civil rights. Filing 1. The plaintiff is a patient at the Norfolk Regional Center
in Norfolk, Nebraska, and has alleged that he was involuntarily administered
a psychotropic drug and confined in the security safety center. Filing 6 at 1.
The plaintiff's complaint was prepared by an individual other than the
plaintiff.
The defendants have moved to dismiss the plaintiff's complaint pursuant
to Fed. R. Civ. P. 12(b)(6) on the ground that the plaintiff is an incapacitated
person without the legal capacity to bring his lawsuit. Filing 15. Further, if
dismissal pursuant to Rule 12(b)(6) is not warranted, the defendants argue
that the complaint should be dismissed for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(1), or for lack of personal jurisdiction pursuant
to Fed. R. Civ. P. 12(b)(2).
In the alternative, the defendants move for joinder of the plaintiff's duly
appointed co-guardians to act in a representative capacity for the plaintiff. In
support of their motion, the plaintiff filed a certified copy of an order of the
County Court of Scotts Bluff, County, Nebraska, Case. No. PR 10-122, showing

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that the plaintiff has been adjudged an incapacitated person, and that Rebecca
Ream and Justin Ream were appointed to serve as his co-guardians. This order
is dated February 1, 2011. Filing 17-1.
The plaintiff, again with the assistance of someone else, asserts that the
plaintiff's co-guardians are the plaintiff's parents, but who now are divorced,
and the plaintiff's mother, Rebecca Ream, acts as his sole guardian. Filing 18.
According to the plaintiff, Ms. Ream continues to live in Gering, Scotts Bluff,
County, Nebraska. The plaintiff asks this Court to appoint Ms. Ream alone as
his "sole co-guardian."
Nearly eleven years have past since the appointment of the plaintiff's coguardians. Things in life have a tendency to change with that much passage of
time. Here, no documentation has been provided showing that the coguardians ever accepted their appointment, or that Letters of Conservatorship
were ever issued, or that that the co-guardians have complied with the
required filing of an annual report on the ward's condition with the county
court. Given this absence of documentation, and the plaintiff's representation
about the status of the co-guardianship, the Court is concerned whether the
duly appointed co-guardians are acting in that capacity, or if the coguardianship has been abandoned and the plaintiff's mother is now acting
more as the plaintiff's best friend and not within the confines of the ordered coguardianship.
The Court takes judicial notice that Norfolk and Gering are on opposite
ends of the state. Given the lack of evidence showing that a co-guardianship
was ever established for the plaintiff, the eleven-year passage of time, and the
distance between where the plaintiff and his mother reside, the Court is
inclined to appoint a guardian ad litem pursuant to Fed. R. Civ. P. 17(c)(2), to
act in a representative capacity for the plaintiff.
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IT IS ORDERED:
1.

The defendants' motion to dismiss (filing 15) is denied
without prejudice as set forth above.

2.

Pursuant to Rule 17(c) and Section II(A)(1)(c) of the
Amended Federal Practice Fund Plan and the Federal
Practice Committee Plan (as adopted Dec. 29, 2021), the
Court appoints Michael T. Brogan of Brogan & Stafford P.C.,
1400 N. 9th St., P.O. Box 667, Norfolk, Nebraska, 687020667, as guardian ad litem for the plaintiff to investigate this
matter and submit a report to the Court by March 1, 2022,
or as soon thereafter as practicable.

3.

Expenses and attorney's fees shall be paid from the Federal
Practice Fund under the Amended Federal Practice Fund
Plan and the Federal Practice Committee Plan (as adopted
Dec. 29, 2021). Counsel is particularly directed to Section VI,
which explains how to seek reimbursement.

4.

The defendants' deadline to file a responsive pleading or
otherwise respond to the plaintiff's complaint is extended to
March 21, 2022.

Dated this 10th day of January, 2022.
BY THE COURT:
John M. Gerrard
United States District Judge
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