Falkner v. United States
| Decision Date | 06 July 2012 |
| Docket Number | No. 11-2982-STA-cgc,11-2982-STA-cgc |
| Parties | BEVERLY J. FALKNER, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Western District of Tennessee |
ORDER ON PENDING MOTIONS
ORDER OF DISMISSAL
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
On November 3, 2011, Plaintiff Beverly J. Falkner a/k/a Beverly J. Richmond, a resident of Memphis, Tennessee, filed a pro se civil complaint, titled Violation of Federal Healthcare Laws and Regulations, accompanied by a motion seeking leave to proceed in forma pauperis. (ECF Nos. 1 & 2.)1 On November 3, 2011, the Court granted leave to proceed in forma pauperis. (ECF No. 3.) The Court construes Plaintiff's complaint, which seeks relief for inadequate treatment at the Veterans Administration Medical Center in Memphis, Tennessee ("VAMC"), as arising under the Federal Tort Claims Act("FTCA"), 28 U.S.C. §§ 2671 et seq. The Clerk shall record the defendant as the United States of America.2
Since the commencement of this action, Plaintiff has filed numerous documents and motions. On November 30, 2011, Plaintiff filed a motion seeking the appointment of counsel. (ECF No. 4.)3 Plaintiff filed additional documents pertaining to her motion on December 2, 2011; December 5, 2011; and December 6, 2011. (ECF Nos. 5, 6 & 7.) Pursuant to 28 U.S.C. § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." However, "[t]he appointment of counsel in a civil proceeding is not a constitutional right." Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); see also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (); Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993) (). Appointment of counsel is "'a privilege that is justified only byexceptional circumstances.'" Lavado, 992 F.2d at 606 (quoting Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985)).
In determining whether "exceptional circumstances" exist, courts have examined "the type of case and the abilities of the plaintiff to represent himself." Archie v. Christian, 812 F.2d 250, 253 (5th Cir. 1987); see also Poindexter v. FBI, 737 F.2d 1173, 1185 (D.C. Cir. 1984). This generally involves a determination of the "complexity of the factual and legal issues involved." Cookish v. Cunningham, 787 F.2d 1, 3 (1st Cir. 1986).
Id. at 606.4 Appointment of counsel is not appropriate when a pro se litigant's claims are frivolous or when her chances of success are extremely slim. Id. (citing Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985)); see also Cleary v. Mukasey, 307 F. App'x 963, 965 (6th Cir. 2009) (same).5
Plaintiff has not satisfied her burden of demonstrating that appointment of counsel would be appropriate in this case. Nothing in Plaintiff's motion distinguishes this case from numerous other cases filed by pro se litigants. The motion for appointment of counsel is DENIED.
On December 29, 2011, Plaintiff filed a document purporting to name three friends or family members as her legal guardians with power of attorney. (ECF No. 11.) That document is of no legal force or effect. A party in federal court must proceed either through licensed counsel or on her own behalf. See 28 U.S.C.§ 1654. A pro se litigant can only represent her own interests,6 and can only sign pleadings on her own behalf.7 A power of attorney does not authorize a non-lawyer to prosecute a case in federal court on behalf of another person.8 Plaintiff must proceed either pro se or through licensed counsel.
On January 3, 2012, Plaintiff filed a Motion for Judgment in Favor of Plaintiff's Complaint for Continued Violation of Federal Healthcare Laws and Regulations (ECF No. 12), which, despite the title, appears to seek leave to amend. Because the case has not been screened under 28 U.S.C. § 1915(e)(2)(B), Plaintiff is entitled to amend her complaint as a matter of right. The CourtGRANTS leave to amend. The operative pleading in this matter is the original Complaint, as amended by ECF Number 12.9
On January 10, 2012, Plaintiff filed a stack of documents, including documents received from the Department of Veterans Affairs ("VA") and Plaintiff's handwritten statements. (ECF No. 16.) The documents from the VA do not appear to pertain to any claim asserted in Plaintiff's complaint. On January 13, 2012, Plaintiff submitted additional documents, including another handwritten statement. (ECF No. 15.) Additional documents were filed on January 17, 2012 and January 19, 2012. (ECF Nos. 17 & 18.) Because Plaintiff did not seek leave to amend, and did not submit an amended complaint, these documents will be disregarded.10
On January 23, 2012, Plaintiff filed a motion, titled "Motion for Miscellaneous Relief," that refers to documents filed in another of Plaintiff's cases;11 asks that the defendants in six of her cases, including the instant case, pay settlements; refers, without elaboration, to, "ALL of defendants surveillance evidence"; asks that all documents presented by Plaintiff be scanned by theClerk; and demands that any further delay in the issuance of a scheduling order be disallowed. (ECF No. 19 at 1.) The motion does not establish that the Clerk has failed to scan any documents presented by Plaintiff for this case. The Court will not address the conduct of any case other than this one. The case has not settled, so there is no judgment to enforce.12 Because this case will be dismissed for the reasons stated infra, no scheduling order will issue. Plaintiff's motion is DENIED.
On January 24, 2012, Plaintiff filed another Motion for Miscellaneous Relief (ECF No. 21) that sought to make various additions and corrections to the motion filed on January 23, 2012. Because the previous motion has been denied, the instant motion is also DENIED.
On January 27, 2012, Plaintiff filed a Motion for Removal of Response Times. (ECF No. 22.) Because the case will be dismissed for the reasons stated infra, Plaintiff will not be required to respond to any motions. This motion is DENIED.
On January 30, 2012, Plaintiff filed a Motion for Miscellaneous Relief (ECF No. 24) and a Motion for Correction of that motion (ECF No. 25). These motions are not properly construed as amendments to the complaint because Plaintiff has not submitted a document containing her amended claims. It is administratively impractical to ask the Court and opposing parties to makeinterlinear corrections on the submitted pleadings. Nothing contained in these documents alters the conclusion, stated infra, that the case should be dismissed. These motions are DENIED.
On February 2, 2012, Plaintiff filed a Motion for Documentation Regarding Complaint Filed November 3, 2011, Violation of Federal Healthcare Laws and Regulations to be Admitted as Evidence. (ECF No. 27.) Attached to the motion are excerpts from Plaintiff's medical records. A motion to receive documents into evidence is appropriate only during a hearing or trial. The matters addressed in Plaintiff's motion are properly presented through a motion seeking leave to amend. The motion for documentation to be admitted as evidence is DENIED.
On February 17, 2012, Plaintiff filed a Motion for Expedited Hearing/Special Setting. (ECF No. 28.) Because the case will be dismissed sua sponte for the reasons stated infra, no hearing will be required. The motion is DENIED.
The original Complaint alleges that, in 2010, the VAMC discharged Plaintiff from its alcohol and drug program because she refused to take psychotropic medications. Plaintiff allegedly complied with all other requirements of the program. She met with the Executive Director in hopes of being able to continue her treatment, but was not successful. (ECF No. 1 at 1.)
Plaintiff also "did not receive ample assistance from the Social Worker for homeless veterans." (Id.) Plaintiff was "put out on the street from the AD&D program." (Id.) Plaintiff was also denied dental care. (Id.)
On October 28, 2011, Plaintiff participated in the Compensated Work Therapy ("CWT") Program. On November 2, 2011, Nick, a Hospital Inspector, "made it clear that plaintiff should be working with an experienced employee and only performing the lower level tasks." (Id.) Since November 11, 2011, Plaintiff has been assigned to work independently, putting her life and the lives of patients at risk. (Id.) Plaintiff was also denied unspecified travel pay. (Id.)
Plaintiff seeks money damages in the amount of $55 million. (Id.)
In the amendment filed on January 3, 2012, Plaintiff alleges that, on December 15, 2011, she learned from a more experienced employee not to put her hands in trash cans because of the risk of contact with contaminated needles. Plaintiff says that she did not previously know this and, "[a]s of this date, I have not had one full day to observe or be trained by a housekeeping employee." (ECF No. 12 at 1.)
Plaintiff further alleges that she met with a psychologist named Dr. Clarissa Camp on December 20, 2011. Dr. Camp agreed to recommend that Plaintiff's CWT be extended because she has had difficulty finding employment. (Id.) On December 29, 2011, a CWT Counselor told Plaintiff that Dr. Camp's recommendation "meant nothing because of a decision made by someone higher up." (Id. at 2.)
Plaintiff seeks money damages in the amount of $41,411,411.41. (Id.)
28 U.S.C. §...
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