Ferguson v. Sniezek et al
MEMORANDUM re MOTION to Substitute Party 78 (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 06/26/14. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
T.R. SNIEZEK, et al.,
CIVIL NO. 1:CV-10-02638
Before the court is a motion to substitute party, filed by Pamela Varnam, a
an individual who is neither a party to this action, an attorney,1 nor an individual
with a personal stake in the outcome of the captioned action that was brought by
Plaintiff John Ferguson, a former federal inmate who is now deceased. (Doc. 78.)
The motion, filed by Ms. Varnam, who alleges that she is an “attorney-in-fact” for
Plaintiff’s son, Christopher Ferguson, by virtue of an executed power of attorney,
(see Doc. 81, Power of Attorney), seeks to substitute Christopher Ferguson as a
party for purposes of appealing this court’s July 30, 2013 memorandum and order
that granted summary judgment in favor of Defendants, various officials and
medical providers at Plaintiff’s former place of confinement, the Federal
Correctional Institution at Schuylkill in Minersville, Pennsylvania (“FCISchuylkill”).2 For the reasons set forth below, the motion to substitute party (Doc.
In her declaration filed on January 21, 2014, Ms. Varnam asserts “I am not an attorney
at law.” (Doc. 77 ¶ 25.)
At the time of summary judgment, the properly named Defendants in this action were
T.R. Sniezek, former Warden; Kim Ask-Carlson, former Associate Warden; Kevin Christeleit,
78) will be stricken.
On December 27, 2010, Plaintiff, through counsel, filed an action, asserting
Bivens claims and related claims under the Federal Tort Claims Act (“FTCA”).
(Doc. 1.) In the complaint, Plaintiff alleged that Defendants were deliberately
indifferent to his serious medical needs related to his cataracts in both eyes, which
resulted in the aggravation of his anxiety disorder. On July 18, 2011, Defendants
filed a motion to dismiss and for summary judgment. (Doc. 20.) After several
extensions and other delays,3 on July 30, 2013, the court granted summary
judgment in favor of Defendants and directed the Clerk of Court to close the case.
case manager; Joseph Rush and David N. Steffan, Physician’s Assistants; and the Federal Bureau
After Defendants filed their brief in support of the motion to dismiss and for summary
judgment on August 5, 2011, (Doc. 31), on September 7, 2011, the court directed Plaintiff’s
counsel to file a brief in opposition on or before September 20, 2011, (Doc. 33). On September
21, 2011, Plaintiff’s counsel filed a motion to enlarge the opposition deadline. (Doc. 36.) The
court granted Plaintiff’s motion that same day and directed Plaintiff to file his opposition by
October 4, 2011. (Doc. 37.) On September 26, 2011, Plaintiff filed a pro se motion to defer
judgment on Defendants’ dispositive motion due to his counsel’s lack of response to the court
orders and deadlines. (Doc. 39.) On September 30, 2011, Plaintiff’s counsel filed a motion to
withdraw. (Doc. 40.) By order dated October 3, 2011, the court granted the motion to withdraw
and set the following deadlines: November 15, 2011, for Plaintiff to obtain new counsel; and
December 5, 2011, to file his opposition to Defendants’ dispositive motion. (Doc. 41.) After an
additional three enlargements of time, Plaintiff filed his opposition to Defendants’ dispositive
motion on the same day that the court entered an order closing the case due to Plaintiff’s failure
to file a timely opposition. (Docs. 61 & 63.) Plaintiff filed a motion for reconsideration, (Doc.
69), which the court granted by order dated May 17, 2012, (Doc. 71). After Defendants filed
their reply brief, (Doc. 74), the court granted summary judgment in favor of Defendants by
memorandum and order dated July 30, 2013, (Doc. 75).
(Doc. 75.) Plaintiff did not timely file an appeal and, unfortunately, died on
October 4, 2013. (See Doc. 80 ¶ 8.)
On January 21, 2014, Ms. Varnam filed the instant motion for substitution of
proper party and brief in support thereof (Docs. 78 & 79), a suggestion of death for
Plaintiff John Ferguson (Doc. 80), a durable power of attorney on behalf of
Christopher Ferguson (Doc. 81), and two declarations (Docs. 77 & 82). In her
filings, Ms. Varnam informs the court that Plaintiff died on October 4, 2013. On
April 8, 2014, the court directed Defendants to respond to the motion to substitute.
(Doc. 84.) Defendants have responded, (see Doc. 86), Ms. Varnam has replied,
(Doc. 90), and Defendants have filed a sur-reply, (Doc. 94). Thus, the motion to
substitute party is now ripe for disposition.
The instant motion has been brought pursuant to Rule 25(a) of the Federal
Rules of Civil Procedure and the Pennsylvania Survival Statute by a non-attorney,
Ms. Varnam. (Doc. 78.) Defendants have responded with filings addressing the
merits of Ms. Varnam’s motion. (Docs. 86 & 94.) However, the court need not
reach the merits of the instant fundamentally flawed motion.
Federal law provides that “parties may plead and conduct their own cases
personally or by counsel as, by the rules of [federal] courts, respectively, are
permitted to manage and conduct causes therein.” 28 U.S.C. § 1654. It is well
established that the statutory right to proceed pro se applies only to a party in his or
her own right, and not to non-attorneys who attempt to appear on behalf of
individuals other than themselves. Williams v. United States, 477 F. App’x 9, 11
(3d Cir. 2012); In re Radogna, 331 F. App’s 962, 964 (3d Cir. 2009); Osei-Afriyie
v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d Cir. 1991).
The execution and filing of a durable power of attorney, presumably
executed in the matter sub judice pursuant to 20 Pa. C.S. § 5602(a)(20), does not
authorize a non-attorney to litigate on behalf of another. It is settled Pennsylvania
law that the unlicenced, in-court representation of another is considered engaging
in the prohibited practice of law and that a power of attorney does not overcome
that prohibition. See Harris v. Philadelphia Police Dep’t, Civ. No. 06-cv-2192,
2006 WL 3025882, *2 (E.D. Pa. Oct. 20, 2006) (citing Kohlman v. Western Pa.
Hosp., 652 A.2d 849, 852-53 (Pa. Super. Ct. 1994) (rejecting claim that an agent
authorized to act for a pro se litigant may bring suit for that person as contrary to
the constitution, the laws, and the public policy of Pennsylvania))); accord OseiAfriyie, 937 F.2d at 882-83 (holding that parent and guardian could not litigate pro
se on behalf of his children); Estate of Keatinge v. Biddle, 316 F.3d 7, 14 (1st Cir.
2002) (“[T]he holder of a power of attorney is not authorized to appear pro se on
behalf of the grantor.”); Powerserve Int’l, Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir.
2001) (concluding that an “attorney-in-fact” for daughter was not permitted to
litigate pro se on daughter’s behalf). A duly executed power of attorney may
empower Ms. Varnam to pursue claims and litigation on behalf of Christopher
Ferguson. See 20 Pa. C.S. § 5602(a)(20). However, that power does not extend to
authorize her to litigate on behalf of another, that is to practice law. See Harris,
2006 WL 3025882 at *2. While the power of attorney may operate to confer
certain authority under state law, it does not allow Ms. Varnam, a non-attorney, to
represent Plaintiff’s purported successor in federal court. Rather, Christopher
Ferguson must appear through counsel or proceed pro se.
Because Ms. Varnam is not permitted to represent Mr. Christopher Ferguson
pro se in federal court due to her status as a non-attorney, or “attorney-in-fact,” the
court will strike the motion to substitute party.
An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: June 26, 2014.
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