L.A. v. Mitchell et al

Filing 82

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that the 1 complaint be DIMSISSED without prejudice for lack of capacity of pltfs next friend to prosecute this action without representation by a licensed atty. Signed by Magistrate Judge John S. Bryant on 5/18/12. (xc:Pro se party by regular and certified mail.)(rd)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
L.A., an adjudicated “adult
ward” under court-appointed
conservatorship, by Next
Friend, and mother, Renate
Arnold,
Plaintiff,
v.
BELINDA MITCHELL, et al.,
Defendants.

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NO.

3:11-1088

Judge Sharp/Bryant

TO: The Honorable Kevin H. Sharp
REPORT AND RECOMMENDATION
For the reasons stated in this report and recommendation,
the undersigned Magistrate Judge recommends that the complaint be
dismissed for lack of capacity of plaintiff’s next friend to
prosecute

this

action

without

representation

by

a

licensed

attorney.
Statement of the Case
The complaint in this action has been filed by Renate
Arnold as next friend and mother of her daughter, “L.A.”

L.A.,

according to the complaint is twenty (20) years old, has been
disabled from birth with Down syndrome, has the mental capacity of
a child, and communicates primarily by means of sign language.
Renate Arnold has filed this complaint pro se.
She alleges that defendants have violated her mentally
incompetent daughter’s rights under the Americans With Disabilities

Act (“ADA”), 42 U.S.C. § 12101, et seq., and her rights under
various amendments to the United States Constitution, pursuant to
42 U.S.C. § 1983 and other civil rights statutes.
Summary of the Facts Alleged in the Complaint
Although the complaint contains scant factual detail and
consists largely of conclusory allegations, it charges that a state
court conservatorship proceeding was commenced in the probate
division of the Davidson County Circuit Court, and that, as a
result of that proceeding, defendant Belinda Mitchell was appointed
by the Court as conservator for plaintiff L.A. Named as defendants
are the following:
1.

Belinda Mitchell, court-appointed conservator;

2.

Andrea Hedrick, court-appointed guardian ad litem;

3.

The probate division of the Davidson County Circuit

4.

Randy Kennedy, a state court judge who presided over

Court;

a portion of the conservatorship proceeding;
5.

D.J. Alissandratos, who was specially appointed as a

state court judge to preside over the conservatorship proceeding;
6.

Tennessee Department of Human Services;

7.

Tennessee Department of Intellectual & Developmental

Disabilities;
8.

The ARC of Tennessee, Inc.;

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9.

Metropolitan Nashville Public Schools;

10. Exchange Club Family Center, Inc.;
11. Restoration Residential Services, LLC;
12. The State of Tennessee; and
13. Office of the Tennessee Attorney General.
The

complaint

defendants

claims

in

largely

collectively

constitutional

rights

have
in

conclusory

violated

the

conduct

allegations

the

ADA

of

that

and
state

the

L.A.’s
court

conservatorship proceeding and the administration of the resulting
conservatorship estate.
As relief, the plaintiff seeks a declaratory judgment
that the practices, policies and procedures of defendants in
conducting

the

administering

state
the

court

conservatorship

conservatorship

proceeding

estate

have

and

in

wrongfully

discriminated against L.A. and have violated her constitutional
rights;

an

injunction

prohibiting

defendants

from

further

violations of L.A.’s statutory or constitutional rights and staying
further

administration

of

the

state

court

conservatorship

proceeding; and an award of monetary damages, both compensatory and
punitive, and attorney’s fees, costs and expenses.
Analysis
On

April

9,

2012,

the

undersigned

Magistrate

Judge

entered an order requiring plaintiff’s next friend and mother,
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Renate Arnold, to show cause why the complaint should not be
dismissed for her failure to be represented by a licensed attorney,
as required by law (Docket Entry No. 73).
Although 28 U.S.C. § 1654 provides that “[i]n all courts
of the United States the parties may plead and conduct their own
cases personally or by counsel,” this statute does not permit
plaintiffs to appear pro se where interests other than their own
are at stake.

Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir.

2002) (citing Iannaccone v. Law, 142 F.3d 553, 558 (2nd Cir. 1998)).
Similarly, parents cannot appear pro se on behalf of their minor
children because a minor’s personal cause of action is her own and
does not belong to her parent or representative.

Shepherd, 313

F.3d at 970-71 (citing Cheung v. Youth Orchestra Foundation of
Buffalo, Inc., 906 F.2d 59, 61 (6th Cir. 1990)).

It appears from

this complaint that Renate Arnold, mother of L.A., who is not
represented by a licensed attorney, has filed her complaint seeking
to

assert

the

incompetent.

claims

of

her

daughter,

an

undisputed

mental

Under the law cited above, Renate Arnold may not

prosecute this claim without representation by a licensed attorney.
In her response to the Court’s order to show cause
(Docket Entry No. 80), the next friend argues that the Court should
remedy this deficiency by granting her motion to appoint counsel
for plaintiff.

However, unlike criminal proceedings, there is no

constitutional right to appointed counsel in a civil action.
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Willett v. Wells, 469 F.Supp.748, 751 (E.D. Tenn. 1977). Moreover,
the Sixth Circuit has held that appointment of counsel for a civil
litigant is a matter within the discretion of the district court
and will only occur under exceptional circumstances.

Lavado v.

Keohane, 992 F.2d 601 (6th Cir. 1993).
Although

the

claims

asserted

in

the

complaint

are

admittedly highly unusual, the undersigned Magistrate Judge finds
that

this

case

does

not

present

exceptional

circumstances

sufficient to warrant the appointment of counsel for plaintiff.
First, the relief sought in this complaint would in essence require
this

Court

to

conservatorship

sit

in

appellate

proceeding,

review

likely

of

the

implicating

state
the

court

Younger

abstention doctrine, Younger v. Harris, 401 U.S. 37 (1971), the
Rooker-Feldman doctrine, or other similar doctrines of federal
abstention. Indeed, abstention has been held to be particularly
appropriate when the underlying matters involve issues of family
relations and child custody, which clearly implicate important
state interests.

Meyers v. Franklin County Court of Common Pleas,

23 F. Appx. 201, 204 (6th Cir. 2001).

In addition, it appears from

the complaint that a number of the defendants likely have a defense
of absolute immunity from claims arising from their roles in the
state court conservatorship proceedings.
Moreover, the undersigned Magistrate Judge notes that the
complaint consists largely of conclusory allegations, and fails to
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state precisely what acts or omissions by defendants are alleged to
be wrongful.

These meager factual allegations may be insufficient

to state plausible claims upon which relief can be granted, under
the authority of Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

Finally, the

complaint offers no explanation why plaintiff’s constitutional
claims cannot be adequately addressed in the Tennessee appellate
courts.

For these reasons, the undersigned Magistrate Judge finds

that this is not a case presenting a substantial constitutional
question

or

such

exceptional

circumstances

as

to

warrant

the

undersigned

appointment of counsel for plaintiff.
In

consideration

of

the

foregoing,

Magistrate Judge finds that Renate Arnold, as mother and next
friend of L.A., may not prosecute this case without representation
by a licensed attorney and, therefore, that the complaint should be
dismissed without prejudice.
RECOMMENDATION
For the reasons stated above, the undersigned Magistrate
Judge RECOMMENDS that the complaint be DISMISSED without prejudice.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any party has fourteen (14) days from service of this Report and
Recommendation in which to file any written objections to this
Recommendation, with the District Court.

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Any party opposing said

objections shall have fourteen (14) days from receipt of any
objections filed in this Report in which to file any responses to
said objections.

Failure to file specific objections within

fourteen (14) days of receipt of this Report and Recommendation can
constitute a waiver of further appeal of this Recommendation.
Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111
(1986).
ENTERED this 18th day of May 2012.
s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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