Cokley v. Barriga et al

Filing 5

ORDER DENYING 2 Motion for Temporary Restraining Order and Preliminary and Permanent Injunction. Signed by Judge Xavier Rodriguez. (aej) (Main Document 5 replaced on 10/28/2014) (rf).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
CAROLYN COKLEY,
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Plaint ff

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§

v.

Civil Action No. SA-14-CV-945-XR

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§

LACEY BARRIGA, in her Official Capacity
as Temporary Guardian, and CAROL
COLLINS, in her Official Capacity as
Guardian ad litem,

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§
§
§
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Defendants.

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ORDER
On this date the Court considered Plaintiff's Request for Temporary Restraining Order

and Preliminary and Permanent Injunction (docket no. 2). For the following reasons, the Court
DENIES the temporary restraining order and preliminary injunction.

Background
Plaintiff Carolyn Cokley filed her original complaint (docket no. 1) against Defendant
Lacey Barriga, in her capacity as Cokley's temporary guardian, and Defendant Carol Collins, in
her capacity as Cokley's guardian ad litem, on October 27, 2014. Plaintiff immediately filed a
motion for a temporary restraining order (TRO) and preliminary injunction. The application
seeks to force Defendants to return Cokley's driver's license and keys, as well as allow her to

move out of an assisted living facility, Morningside Manor, located at 602 Babcock Road, San
Antonio, Texas 78201 ("Morningside")

Cokley is seventy-five-years old. She alleges the Bexar County Probate Court appointed

Barriga as temporary guardian pursuant to a medical report finding Cokley incapacitated.

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Cokley alleges Barriga, once appointed, seized Cokley's property, including her driver's license

and house and car keys; then committed her to live at Morningside. Cokley alleges she is held at
Morningside against her will.

Cokley claims that she was cleared of any incapacity by a

different doctor who found she was "without cognitive deficit," and "did not lack capacity."

Cokley alleges Defendants have failed to raise this new evidence to the Probate Court, and
continue to deny her the opportunity to return home, move into an apartment, or access to her

vehicle against her wishes.
Cokley also alleges that, without her driver's license, she is unable to vote in the
upcoming federal, state, and local elections. Cokley states that Barriga negligently submitted

Cokley's application to vote by mail too late. She further alleges the Bexar County Elections
Department denied her early voting privileges at the Bexar County Courthouse because she did
not have a valid Texas Driver's license or Texas Election photo I.D. Cokley alleges she cannot
obtain a Texas Election I.D. because a valid driver's license has been issued to her.
Cokley asserts two claims against Defendants: 1) they unconstitutionally seized her

property and are holding her at Momingside against her will in violation of 42 U.S.C. § 1983,
and the Fourth and Fourteenth Amendments, including denying Cokley her constitutionally

protected right to vote; and 2) they unlawfully discriminated against her under the Americans
with Disabilities Act, 42 U.S.C.

§

12182,

et.

seq.

Analysis
To be entitled to a TRO or preliminary injunction, Federal Rule of Civil Procedure 65
states a plaintiff has the heavy burden of showing four elements: (1) a substantial likelihood of

success on the merits; (2) a substantial threat of irreparable injury if the equitable relief is denied;
(3) that the threatened injury outweighs any prejudice the equitable relief might cause the

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defendant; and (4) that the equitable relief will not disserve the public interest. See Janvey

v.

Alguire, 628 F.3d 164, 174 (5th Cir. 2010). "Injunctive relief is 'an extraordinary and drastic

remedy,' and should only be granted when the movant has clearly carried the burden of
persuasion." Anderson v. Jackson, 556 F.3d 351, 360 (5th Cir. 2009) (quoting HollandAm. Ins.
Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)).

To obtain a preliminary injunction or a TRO, Cokley must demonstrate a substantial

likelihood of success on the merits. Cokley has not met her heavy burden. Cokley first claims
Defendants violated 42 U.s.c

§ 1983

by seizing her property and holding her against her will,

"under color of state law," in violation of the Fourth and Fourteenth Amendments. As private
actors, Defendants' actions can only be attributed to the state if 1) they perform "a function

which is traditionally the exclusive province of the state," (2) the state "exercised coercive power
or has provided such significant encouragement, either overt or covert, that the choice must in

law be deemed to be that of the [s]tate," or (3) the government has "so far insinuated itself into a

position of interdependence with the [Defendants] that it was a joint participant in the
enterprise." Bass

v.

Parkwood Hosp., 180 F.3d 234, 242 (5th cir. 1999) (internal quotations

omitted).
Cokley does not allege facts to support a finding of state action.

She alleges in a

conclusory fashion that Defendants "acted as officers of the court under color of state law" in
their capacities as temporary guardian and guardian ad 1item, and that Defendants "acted
pursuant to an official policy, practice, custom or decision as temporary guardian or guardian ad
litem under 'color of authority' of state law."

In Polk County

v.

Dodson, 454 U.S. 312, 102 5. Ct. 445 (1981), the Supreme Court held

that a public defender does not act under color of state law simply because she was a public

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defender who is paid by the state.

guardians and attorneys
appoints them. Hall

v.

Courts have expanded upon that analysis, holding that

litem are not state actors merely by their positions or because a court

Dixon, CIV A. H 09-2611, 2010 WL 3909515, at *40..*41 (S.D. Tex.

Sept. 30, 2010) affd sub nom. Hall v. Smith, 497 F. App'x 366 (5th Cir. 2012) (collecting cases);
see, e.g., Meeker

v.

Kercher, 782 F.2d 153, 155 (10th Cir. 1986) (holding that the ethical and

professional duty of a guardian ad 1item to the ward/child meant the guardian ad litem was not a
state actor). In addition, the Fifth Circuit has upheld a district court's decision that found a

guardian was not a state actor when she only participated in court proceedings, complied with
court orders, and acted within her discretion as guardian to continue housing the plaintiff in an
assisted living facility. Johnson ex rel. Wilson

v.

Dowd, 305 F. App'x 221, 224 (5th Cir. 2008)

(affirming Wilson v. Dowd, 5-07-CV-99, 2007 WL 4570158 (E.D. Tex. Dec. 26, 2007)).
By alleging Defendants continue to have Cokley live at Morningside, hold her driver's

license, house and car keys, and otherwise acting within their discretion as Cokley's guardian

and guardian ad litem, Cokley fails to allege sufficient facts to show state action. See Johnson ex
rel. Wilson, 305 F. App'x at 224; Hall, 2010 WL 3909515, at *4o..*4l. Further, with regard to

denying Cokley the right to vote, Cokley fails to allege why Barriga cannot accompany her to the
polls with Cokley's driver's license, or otherwise assist her to exercise her right to vote.
Because Cokley fails to demonstrate "state action," she has not carried her burden of showing a
substantial likelihood of success on the merits for her § 1983 claims.
Second, Cokley does not show a substantial likelihood of success on the merits on her

ADA claim. Title III of the ADA states, "No individual shall be discriminated against on the

basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any person who owns,

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leases (or leases to), or operates a place of public accommodation." 42 U.S.C.
Tour, Inc.

v.

Martin,

§

12182(a); PGA

532 U.S. 661, 676, 121 S. ct. 1879, 1889-90 (2001). Cokley alleges "she is

not disabled," but is "perceived to have a disability based on her age and association with
Morningside."

She alleges Momingside is a place of public accommodation, and that

Defendants have conspired to keep her there without adequate medical care to "create the
appearance of incapacity as a pretext to obtain a permanent guardianship over [her]."

Cokley fails to allege that Defendants own, lease, or operate a place of public
accommodation such that they can discriminate against her in violation the ADA. Defendants
are not alleged to have any affiliation with Momingside; the only relevant public accommodation

in this case. They are only, allegedly,' conspiring to keep her there, which is not "owning,

leasing, or operating." Cokley therefore fails to show a substantial likelihood of success on the
merits of her ADA claims. The Court thus denies the motion for a TRO and preliminary

injunction because Cokley has not carried her heavy burden of showing substantial likelihood of
success on either her

§

1983 or ADA claims.

Conclusion
For the foregoing reasons, the Court DENIES Plaintiff's Request for Temporary
Restraining Order and Preliminary and Permanent Injunction (docket no. 2).
It is so ORDERED.

SIGNED this 28th day of October, 2014.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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And

dubiously