Grace et al v. Sparks et al

Filing 9

MEMORANDUM OPINION AND ORDER pursuant to plaintiffs' 4 motion for service of process by the United States Marshal or someone specially appointed and request for service by certified mail; directing that Wesley Kent Varney is appointed as gua rdian ad litem for C. Michael Sparks, that John H. Tinney, Jr. is appointed as guardian ad litem for Michael Thornsbury, and James M. Cagle is appointed as guardian ad litem for David L. Baisden; the appointments are for the limited purpose of effect ing service of process and the guardians forthwith delivery of a copy of that which is served upon them to Mr. Sparks, Mr. Thornsbury, and Mr. Baisden, together with prompt notification to the court that they have done so; such notification is to be accompanied by a writing signed by each defendant as to whether they are engaging counsel to represent them in this action. Signed by Judge John T. Copenhaver, Jr. on 3/6/2015. (cc: counsel of record; guardians ad litem; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
TINA M. GRACE and
LARRY GRACE,
Plaintiffs,
v.

Civil Action No.: 2:15-00281

C. MICHAEL SPARKS and
MICHAEL THORNSBURY and
JAY LOCKARD, individually and in
their (former) official capacity, and
THE WEST VIRGINIA SUPREME COURT OF APPEALS and
STEVEN D. CANTERBURY, its administrator, and
THE MINGO COUNTY COMMISSION and
MINGO COUNTY COMMISSIONERS,
in their official capacity,
Defendants.
TINA M. GRACE and
LARRY GRACE,
Plaintiffs,
v.

Civil Action No.: 2:15-01505

C. MICHAEL SPARKS and
MICHAEL THORNSBURY and
JAY LOCKARD, individually and in
their (former) official capacity, and
THE WEST VIRGINIA SUPREME COURT OF APPEALS and
STEVEN D. CANTERBURY, its administrator, and
THE MINGO COUNTY COMMISSION, together with its
present (and former) commissioner(s) and
in their (his) official capacity, and
GREG SMITH and JOHN MARK HUBBARD and
DIANE HANNAH and DAVID L. BAISDEN and
MINGO COUNTY BOARD OF EDUCATION,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending are plaintiffs’ motions for service of process
by the United States Marshal or someone specially appointed,
filed February 6, 2015, and a request for service by certified
mail, filed February 28, 2015.
Some of the defendants are presently in custody and
unserved, namely, C. Michael Sparks, Michael Thornsbury, and
David L. Baisden.

The Federal Rules of Civil Procedure require

that federal courts follow state law regarding who has the
capacity to be sued.

Rule 17(b)(1) provides that “[c]apacity to

sue or be sued is determined . . . for an individual who is not
acting in a representative capacity, by the law of the
individual’s domicile,” which appears to be West Virginia as
opposed to the places of incarceration.
17(b)(1).

Fed. R. Civ. P.

The West Virginia Rules of Civil Procedure require

that when a civil suit is brought against an incarcerated
person, service be made on
that person’s committee, guardian, or like fiduciary . . .
or, if there be no such committee, guardian, or like
fiduciary . . . service of process shall be made upon a
guardian ad litem appointed under Rule 17(c).
W. Va. R. Civ. P. 4(d)(4).
Additionally, West Virginia Rule of Civil Procedure
17(c) provides as follows:

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Whenever an infant, incompetent person, or convict has a
representative, such as a general guardian, curator,
committee, conservator, or other like fiduciary, the
representative may sue or defend on behalf of the infant,
incompetent person, or convict. An infant, incompetent
person, or convict who does not have a duly appointed
representative may sue by a next friend or by a guardian ad
litem. The court or clerk shall appoint a discreet and
competent attorney at law as guardian ad litem for an
infant, incompetent person, or convict not otherwise
represented in an action, or shall make such other order as
it deems proper for the protection of the infant,
incompetent person, or convict. A guardian ad litem is
deemed a party for purposes of service; failure to serve a
guardian ad litem in circumstances where service upon a
party is required constitutes failure to serve a party.
W. Va. R. Civ. P. 17(c).

West Virginia Rule 17(c) is in accord

with state statutory and decisional law.

See W. Va. Code § 28-

5-36; Quesinberry v. Quesinberry, 191 W.Va. 65, 70 (1994);
Craigo v. Marshall, 175 W. Va. 72, 75-76 (1985).

The law

regarding capacity of prisoners was “enacted to alleviate the
harsh common law rule allowing a convict to be sued, but not to
appear in court to defend his case.”

Craigo, 175 W. Va. at 74.

In accordance with these authorities, the court will
appoint guardians ad litem for Mr. Sparks, Mr. Thornsbury, and
Mr. Baisden for the limited purpose of effecting service upon
them.
For the reasons stated, it is ORDERED that Wesley Kent
Varney be, and hereby is, appointed as guardian ad litem for Mr.
Sparks, that John H. Tinney, Jr. be, and hereby is, appointed as

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guardian ad litem for Mr. Thornsbury,

and James M. Cagle be,

and hereby is, appointed as guardian ad litem for Mr. Baisden.
The appointments are for the limited purpose of effecting
service of process and the guardians forthwith delivery of a
copy of that which is served upon them to Mr. Sparks, Mr.
Thornsbury, and Mr. Baisden, together with prompt notification
to the court that they have done so.

Such notification is to be

accompanied by a writing signed by each defendant as to whether
they are engaging counsel to represent them in this action.
The Clerk is directed to transmit a copy of this
written opinion and order to all counsel of record, the
guardians ad litem, and any unrepresented parties.
ENTER: March 6, 2015
John T. Copenhaver, Jr.
United States District Judge

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