L.A. v. Mitchell et al

Filing 52

REPORT AND RECOMMENDATION: For the reasons stated herein, the undersigned hereby recommends that the Defendants' motions to dismiss for failure to state a claim (Docket Entry Nos. 34 , 37 , 43 , 47 , 49 ) be GRANTED in part to the extent they challenge Petitioner Ennis's standing to sue on L.A.'s behalf; and that the petition be DISMISSED without prejudice to the underlying claims of L.A. Signed by Magistrate Judge John S. Bryant on 7/11/2013. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
L.A., an adjudicated ‘adult ward’
under court-appointed conservatorship,
by appointed co-conservator, BRENDA ENNIS,
Plaintiff,
v.
BELINDA MITCHELL, et al.,
Defendants.
To:

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Case No. 3:12-cv-810
Judge Sharp
Magistrate Judge Bryant

The Honorable Kevin H. Sharp, District Judge

REPORT AND RECOMMENDATION
I. Introduction
By order entered August 27, 2012 (Docket Entry No. 10), this matter was referred to the
undersigned for case management and to recommend ruling on any dispositive motion.
This petition was filed by Brenda Ennis on behalf of L.A., an ‘adult ward,’ for whom Ms.
Ennis is a co-conservator. Ms. Ennis brings this action pro se against the following defendants:
Belinda Mitchell, court-appointed conservator of L.A.; Andra Hendrick, Guardian Ad Litem of
L.A.; “Probate Division” of the Davidson County Circuit Court; D.J. Allisandratos; Tennessee
Department of Human Services (DHS), Dr. Raquel Hatter, Commissioner; Tennessee
Department of Intellectual & Developmental Disabilities (DIDD), James A. Henry,
Commissioner; The ARC of Tennessee, Inc. (ARC), Holly Lu Conant Rees, President;
Metropolitan Nashville Public Schools (MNPS), Dr. Jesse Register, Director; Exchange Club
Family Center, Inc. (Exchange Club), E. Andy Moats, President; Restoration Residential

Services, LLC (RRS), Sereadia Cooke, President; Office of the Attorney General of the State of
Tennessee (Attorney General), General Robert E. Cooper, Jr. (Docket Entry No. 2). The
Petitioner’s grievances were attached to the petition in the First Affidavit of Brenda Ennis
(Docket Entry No. 3).
The essence of Ms. Ennis’s claim is that the Defendants interfered with Ms. Ennis’
responsibilities as co-conservator, preventing her from fulfilling her court-ordered obligations.
Ms. Ennis claims this alleged interference is a violation of 42 USC § 12203 (b), which make it a
federal crime to coerce, intimidate, threaten or interfere with an individual in the exercise or
enjoyment of her rights protected by the American with Disabilities Act (ADA). Ms. Ennis does
not mention which of her rights under the ADA have been violated, but does state in her affidavit
some of L.A.’s rights that she believes have been violated.
Defendants “Probate Division” and Hendrick filed Motions to Dismiss for failure to state
a claim pursuant to Fed. R. Civ. P. 12(b)(6) on Sepember 17, 2012. Defendants Mitchell and
RRS filed a similar motion on September 20, 2012. Defendants Allisandratos, DHS, DIDD, and
Attorney General also filed a Motion to Dismiss on September 24, 2012. All other defendants
filed a Motion to Dismiss on September 28, 2012. Petitioner failed to respond to the Defendants’
motions to dismiss. For the reasons stated herein, the undersigned recommends that the Motions
to Dismiss be GRANTED in part, to the extent they challenge Petitioner Ennis’s standing to sue
on L.A.’s behalf; and that the petition be DISMISSED without prejudice to the underlying
claims of L.A.

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II. Factual Background
L.A. has Down’s Syndrome and has the mental faculties of a child. Until 2011, she was
under the complete supervision and custody of her mother, Renate Arnold. In 2011, the
Davidson County Probate Court held a conservatorship proceeding, following allegations that
Ms. Arnold had neglected, abused, and exploited L.A. At the conservatorship proceeding
Defendant Mitchell was appointed permanent conservator and Petitioner Ennis was appointed
limited co-conservator of L.A. Ms. Ennis’ responsibilities were limited to arranging visits
between L.A. and Ms. Arnold.
Ms. Arnold filed a Complaint pro se on behalf of L.A., alleging that the same Defendants
violated L.A.’s rights under the Americans with Disabilities Act and her rights under various
amendments to the United States Constitution. L.A. ex rel. Arnold v. Mitchell, 3:11-1088, 2012
WL 1831246 (M.D. Tenn. Sept. 20, 2012). The District Court dismissed the complaint following
a Report and Recommendation by the undersigned, finding that while Ms. Arnold could file a
lawsuit pro se, she could not proceed pro se on behalf of her daughter. Id. The order to dismiss
was upheld by the Sixth Circuit Court of Appeals. (Case No. 3:11-1088, Docket Entry No. 134)
In the middle of the above mentioned proceedings, Brenda Ennis filed a pro se Petition
for Injunctive Relief on behalf of L.A., stating that the defendants interfered with her duties as
co-conservator in violation of 42 USC § 12203 (b). In an order dated August 6, 2012, this Court
found that because Ms. Ennis was a nonparty, the petition was improper, and directed the clerk
to assign the petition a new case number. The petition is before this Court today. The Petition
seeks injunctive relief, asking this Court to direct the Defendants, all state entities for the
purposes of this action, to cease any acts that interfere with the Petitioner’s responsibilities as co-

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conservator of L.A.

III. Legal Conclusions
A. Standard of Review
In reviewing a motion to dismiss for failure to state a claim upon which relief can be
granted under Fed. R. Civ. P. 12(b)(6), the court must view the complaint in the light most
favorable to the plaintiff, accepting all well-pleaded factual allegations as true. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Although Fed. R. Civ. P. 8(a)(2) requires merely “a short and plain
statement of the claim,” the plaintiff must allege enough facts to make the claim plausible. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). She must plead well enough to ensure that
his complaint is more than “a formulaic recitation of the elements of a cause of action.” Id. At
555. “The factual allegations, assumed to be true, must do more than create speculation or
suspicion of a legally cognizable cause of action; they must show entitlement to relief.” League
of United Latin American Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). Nevertheless,
this Court need not accept legal conclusions or unwarranted factual inferences as true, Iqbal, 556
U.S. at 677-78; Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987), and a
complaint containing mere legal conclusions alone will “not unlock the doors of discovery for a
plaintiff.” Iqbal, 556 U.S. at 678. While a pro se complaint is to be “liberally construed” and
“must be held to less stringent standards than formal pleadings drafted by lawyers,” Erickson v.
Pardue, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), “basic
pleading essentials” must still be met. See Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

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B. Analysis of Defendants’ Motions
Defendants seek to dismiss the petition against it pursuant to Fed. R. Civ. P. 12(b)(6), for
failure to state a claim upon which relief can be granted. (Docket Entry Nos. 35, 37, 44, 48, 49).
Specifically, the defendants assert that (1) Petitioner Ennis’s limited co-conservatorship
does not give her standing to sue on behalf of L.A.; (2) the Eleventh Amendment grants the
Defendants absolute immunity and thus bars this case for injunctive relief; (3) this Court does
not have jurisdiction to decide this matter, pursuant to the Rooker-Feldman doctrine; and (4) the
petition fails to meet the minimum pleading requirements by making only vague and conclusory
allegations. For the following reasons, the undersigned finds that the Defendants’ motions to
dismiss should be GRANTED in part, to the extent that they challenge Petitioner Ennis’s
standing to sue on L.A.’s behalf.

A conservator may sue on behalf of an incompetent person. Fed. R. Civ. P. 17(c)(1)(C).
When a court determines that an incompetent person needs a conservator, the court must issue an
order enumerating the powers to be removed from the incompetent and vested in the conservator.
TENN. CODE ANN. § 34-3-107. The conservator cannot exercise powers of the ward that are not
enumerated to her. Cf. In re Buda, 252 B.R. 125, 129 (Bankr. E.D. Tenn. 2000) (“[T]he scope of
a particular conservator’s authority is defined by the orders entered by the appointing court, and
the state’s statutes govern that authority.”). If the right to bring a suit is not specifically
enumerated to the conservator, a conservator may still bring an action under limited
circumstances. See Nave v. Nave, 173 S.W.3d 766, 771 (Tenn. Ct. App. 2005) (allowing a
conservator to bring a suit when the enumerated rights included a “catch-all” provision granting

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the conservator the authority to “do any other act of legal significance. . .”).
Here, the Probate Court appointed a Guardian ad litem, Defendant Hendrick, who is an
attorney, and who has the authority to bring suit on behalf of L.A. (Docket Entry No. 3 at 28),
and a permanent conservator, Defendant Mitchell, who has authority over the vast majority of
L.A.’s affairs. Id. at 3, 5. Ms. Ennis was not granted authority by the Probate Court to bring suit
on behalf of L.A., and none of her enumerated responsibilities, nor any catch-all provision of the
order, indicate that the court intended her to have that authority. Id. at 6. Ennis’s responsibilities
were limited to arranging and organizing visits between L.A. and Ms. Arnold. Id. Accordingly,
this action is subject to dismissal without prejudice to the underlying claims of L.A. Harris v.
Metro. Gov’t of Nashville, 3:08-0859, 2010 WL 883811 (M.D. Tenn. Mar. 11, 2010).
Additionally, this action is subject to dismissal without prejudice in its present form,
because Petitioner Ennis may not litigate these claims for injunctive relief on L.A.’s behalf
without the assistance of an attorney. 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 or petitioners 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 (2d Cir. 1998)). It is well established that parents may not
sue pro se on behalf of their child because the child’s cause of action is her own and does not
belong to the 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)). The record in this case
makes clear that Petitioner Ennis raises no claim on her own behalf, but strictly claims a right to
relief on behalf of L.A. (Docket Entry No. 6 at n.2, ¶3).

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Under the law cited above, Ms. Ennis may not prosecute this case without representation
by a licensed attorney. Further, while Ms. Ennis is not a parent bringing a suit on behalf of a
child, the reasoning of Shepherd follows that a co-conservator also may not bring a pro se action
on behalf of a child or ward. While Fed. R. Civ. P. 17(c) allows for a conservator to “sue or
defend on behalf of. . . an incompetent person,” this rule does not allow the conservator to act as
attorney for the ward. See Cavanaugh ex rel. Cavanaugh v. Cardinal Local Sch. Dist., 409 F.3d
753, 755 (6th Cir. 2005), abrogated on other grounds by Winkelman ex rel. Winkelman v. Parma
City Sch. Dist., 550 U.S. 516 (2007).
Because the petitioner does not have the authority to bring this action and because she
cannot proceed pro se on behalf of L.A., there is no reason for this Court to address the other
arguments in the defendants’ motions to dismiss. For the reasons stated above, the defendants’
motions to dismiss should be GRANTED in part as described herein.

IV. Recommendation
For the reasons stated herein, the undersigned hereby recommends that the Defendants’
motions to dismiss for failure to state a claim (Docket Entry Nos. 34, 37, 43, 47, 49) be
GRANTED in part to the extent they challenge Petitioner Ennis’s standing to sue on L.A.’s
behalf; and that the petition be DISMISSED without prejudice to the underlying claims of L.A.
Any party has fourteen (14) days from receipt of this Report and Recommendation in
which to file any written objections to do with the District Court. Any party opposing said
objections shall have fourteen (14) days from the receipt of any objections filed in which to file
any responses to said objections. Failure to file specific objections within fourteen (14) days of

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receipt of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. Thomas v. Arn, 474 U.S. 140 (1985); Cowherd v. Million, 380 F.3d 909, 912
(6th Cir. 2004) (en banc).
ENTERED this 12th day of July, 2013.

s/ John S. Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE

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