M. S. v. Wermers

• Decision Date: 29 June 1977
• Docket Number: No. 76-1407,76-1407
• Citation: 557 F.2d 170
• Parties: M. S., on behalf of herself and all others similarly situated, Appellant, v. Robert WERMERS, Doty Brown, John Mitchell, Ira Wintrode, Stewart Steele, Donald Kelly, N. R. Whitney, J. T. Elston and Pat Tlustos, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 170

557 F.2d 170

M. S., on behalf of herself and all others similarly

situated, Appellant, v. Robert WERMERS, Doty Brown, John Mitchell, Ira Wintrode, Stewart Steele, Donald Kelly, N. R. Whitney, J. T.

Elston and Pat Tlustos, Appellees.

No. 76-1407.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 15, 1976.

Decided June 29, 1977.

Michael A. Wolff, Black Hills Legal Services, Inc., Rapid City, S. D., for appellant Ben Stead and Gregory D. Lewis, Rapid City, S. D., on brief.

John K. Konenkamp, Deputy State's Atty., Pennington County, Rapid City, S. D., for appellees.

Before WEBSTER and HENLEY, Circuit Judges, and VAN PELT, Senior District Judge. ^*

WEBSTER, Circuit Judge.

M.S., an otherwise unidentified minor female, appeals from the order of the District Court dismissing her action following her refusal to give notice to her parents of a pending proceeding for the appointment of a guardian ad litem in connection with her complaint for declaratory judgment. At the time the action was filed appellant was fifteen years of age and unmarried.

In her complaint, appellant sought to maintain a class action on behalf of herself and all minors residing in Pennington County, South Dakota, who are denied contraceptive services or supplies by the Pennington County Health Department Family Planning Clinic because such minors lack parental consent to receive such services. ¹ She brought her action under 42 U.S.C. § 1983, claiming that the Clinic's policy impermissibly infringes upon the right to privacy as guaranteed to her and other class members by the Fourteenth Amendment.

The District Court dismissed the action without having reached the merits of appellant's claim. The court concluded that a guardian ad litem should be appointed for appellant and that her parents should be notified. Dismissal of the action occurred when appellant declined to give such notice. ² In this appeal, appellant contends that the District Court abused its discretion (1) in refusing to let her proceed without appointment of a guardian ad litem and (2) in dismissing the action for failure to give her parents notice of the guardianship proceedings.

I.

We think it should be obvious at the outset that if appointment of a guardian ad litem is required, or even permitted by law, then it was not error for the District Court to order a hearing for such purpose.

South Dakota law provides that "(a) minor may enforce his rights by civil action * * * in the same manner as a person of full age, except that a guardian must be appointed to conduct the same." S.D. Codified Laws § 26-1-3 (1976). Another section of South Dakota law provides that when an infant does not have a guardian to sue on his behalf, "he may sue by a guardian ad litem. The court shall appoint a guardian ad litem for an infant * * * not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant * * * and may make such appointment notwithstanding an appearance by a general guardian." (Emphasis supplied.) S.D. Compiled Laws Ann. § 15-6-17(c) (1967). The provisions of this section are substantially identical to the provisions of Rule 17(c), Federal Rules of Civil Procedure. ³ Appointment of a guardian ad litem is considered to be discretionary under the Federal Rules, provided the District Court enters a finding that the interests of the minor are adequately protected in the event it does not make such appointment. See Noe v. True, 507 F.2d 9, 11-12 (6th Cir. 1974); Jacobs v. Board of School Comm'rs, 490 F.2d 601, 603-04 (7th Cir. 1973), vacated as moot, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975); Roberts v. Ohio Casualty Ins. Co., 256 F.2d 35, 39 (5th Cir. 1958). Regardless of whether state or federal law should be applied, ⁴ the District Court was bound to consider the appointment of a guardian ad litem for the minor plaintiff and clearly has the power to appoint one in her behalf.

While we have found cases upholding a district court's finding that no guardian ad litem was necessary in a given situation, see Laundry Workers Union, Local 93 v. Mahoney, 491 F.2d 1029, 1033 (8th Cir.) (en banc), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 49 (1974); T H v. Jones, 425 F.Supp. 873, 877 (D.Utah 1975), aff'd, 425 U.S. 986, 96 S.Ct. 2195, 48 L.Ed.2d 811 (1976); Baird v. Bellotti, 393 F.Supp. 847, 850 n.5 (D.Mass.1975), vacated on other grounds, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); Jacobs v. Board of School Comm'rs, supra, 490 F.2d at 604, our attention has been directed to no case holding that a district court abused its discretion in ordering such appointment.

II.

Our inquiry does not end here, however, because the District Court ordered, over appellant's objection, that notice of the hearing on the court-ordered application for guardian ad litem be given to the parents of the minor. When she refused to give such notice, the case was dismissed on the court's own motion. We conclude, under the circumstances here presented, that the order of dismissal was an abuse of discretion and must be vacated.

A district court has power to dismiss an action for failure of the plaintiff to comply with "any order of court." Fed.R.Civ.P. 41(b). Such action may be taken on the court's own motion, Welsh v. Automatic Poultry Feeder Co., 439 F.2d 95, 96 (8th Cir. 1971); see Stanley v. Continental Oil Co., 536 F.2d 914, 916-17 (10th Cir. 1976), and may be exercised under the court's inherent power to control its docket, Pond v. Braniff Airways, Inc.,453 F.2d 347, 349 (5th Cir. 1972); see also Link v. Wabash R.R. Co., 370 U.S. 626, 629-33, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), and to protect the integrity of its orders, Fendler v. Westgate-California Corp., 527 F.2d 1168, 1170 (9th Cir. 1975). See generally 15 A.L.R.Fed. 407 (1973). The power to dismiss under Fed.R.Civ.P. 41(b) is not unlimited, however. It has been described as "the most severe sanction that a court may apply." Durham v. Florida East Coast Railway Co., 385 F.2d 366, 368 (5th Cir. 1967); see Boazman v. Economics Laboratories, Inc., 537 F.2d 210, 212 (5th Cir. 1976). In reviewing such an order we consider whether in the exercise of its power the district court has exceeded the permissible range of its discretion. Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193 (8th Cir. 1976); Grunewald v. Missouri Pacific R.R. Co., 331 F.2d 983, 985 (8th Cir. 1964).

One approach is to ask whether there has been "a clear record of delay or contumacious conduct by the plaintiff * * *." Graves v. Kaiser Aluminum & Chemical Co., 528 F.2d 1360, 1361 (5th Cir. 1976). It can hardly be suggested that such conduct was present in this case. While she opposed the appointment of a guardian ad litem and sought to demonstrate that no guardian was required or needed under either state or federal law, appellant in the alternative asked that her counsel be appointed as guardian ad litem or that a former director of family planning services, Jean Dooner, L.P.N., be appointed. When these alternatives were rejected, appellant respectfully informed the court that she would suffer dismissal rather than abandon the claims to privacy which her lawsuit sought to vindicate.

Another legitimate inquiry is whether dismissal was bottomed upon the plaintiff's refusal to obey an invalid or improper order. See Allied Air Freight, Inc. v. Pan American World Airways, Inc., 393 F.2d 441 (2d Cir.), cert. denied, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117 (1968); Michael v. Clark Equipment Co., 380 F.2d 351 (2d Cir. 1967); Original Ballet Russe v. Ballet Theater, Inc., 133 F.2d 187 (2d Cir. 1943). See also First Iowa Hydro Electric Coop. v. Iowa-Illinois Gas & Electric Co., 245 F.2d 613, 628 (8th Cir.), cert. denied, 355 U.S. 871, 78 S.Ct. 122, 2 L.Ed.2d 76 (1957); 15 A.L.R.Fed. 407, 428-30 (1973).

Appellant contends that her parents could not properly act as guardians ad litem for her in this case because their interests are adverse to hers in that appellant claims the right to obtain prescription contraceptives free from their consent. When there is a potential conflict between a perceived parental responsibility and an obligation to assist the court in achieving a just and speedy determination of the action, parents have no right to act as guardians ad litem. See Fong Sik Leung v. Dulles, 226 F.2d 74, 82 (9th Cir. 1955) (Bolt, J., concurring). District courts have been alert to recognize and guard against this type of conflict. See, e. g., United States v. E. I. DuPont deNemours & Co., 13 F.R.D. 98, 105 (N.D.Ill.1952); Swift v. Swift, 61 F.R.D. 595, 598 (E.D.N.Y.1973); Marlin v. Texas Co., 26 F.Supp. 611, 614 (N.D.Texas 1939), rev'd on other grounds, 109 F.2d 305 (5th Cir. 1940); United States v. Noble, 269 F.Supp. 814, 816 (E.D.N.Y.1967).

It seems obvious in this case that appellant does not believe that her parents will give their consent to her receiving prescription contraceptives; otherwise no litigation would have been required in the first instance. ⁵ the required notice to her parents has had an obvious chilling effect upon appellant's efforts to vindicate her constitutional rights. Parents should not be appointed to act as guardians ad litem in litigation challenging a grant of parental veto power. Since it would be inappropriate to appoint the parents in this case, it was equally inappropriate and unnecessary to condition the further progress of the lawsuit upon notification to the parents of the hearing on the appointment.

Appellant brought this action anonymously, and to require her to disclose her participation to her parents at this stage would substantially nullify the privacy right she seeks to vindicate. See Roe v. Ingraham, 364 F.Supp. 536, 541 n.7 (S.D.N.Y.), rev'd on other grounds, 480 F.2d 102 (2d Cir. 1973). See also N.A.A.C.P. v. Alabama, 357 U.S. 449, 459, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). We think that the minor's asserted interest in...