M.F. ex rel. Branson v. Malott

• Decision Date: 30 May 2012
• Docket Number: Case No. 1:11-cv-807
• Parties: M.F., BY NEXT FRIEND AND DAUGHTER JANE BRANSON, Plaintiff, v. JAMES D. MALOTT, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

M.F., BY NEXT FRIEND AND DAUGHTER JANE BRANSON, Plaintiff,

v.JAMES D. MALOTT, et al., Defendants.

Case No. 1:11-cv-807

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Date: May 30, 2012

Weber, J.

Litkovitz, M.J.

REPORT AND

RECOMMENDATION

The complaint in this case was filed by Jane Branson (Branson) as "next friend" of M.F., Branson's mother, for whom a guardian has been appointed by the Highland County, Ohio Common Pleas Court, Probate Division. Named as defendants are James D. Malott, M.F.'s son and legally appointed guardian; J.D. Wagoner, M.F.'s appointed guardian ad litem in the probate court proceeding; the "Probate Division" of the Highland County Court of Common Pleas; Highland County Probate Judge Kevin Greer; the State of Ohio; and Ohio Governor John Kasich. Branson alleges that defendants violated M.F.'s rights under the Americans With Disabilities Act (ADA), 42 U.SC. § 12101 et seq., the Fair Housing Act, 42 U.S.C. § 3631, and the First, Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. Branson alleges the constitutional claims are brought under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, and under the habeas corpus statutes, 28 U.S.C. §§ 2254 and 2255.

This matter is before the Court on Branson's motions to appoint a guardian ad litem (Docs. 2, 5)¹ , defendant Greer's motion to dismiss (Doc. 20), defendant Malott's motion todismiss (Doc. 22), defendant Wagoner's motion to dismiss (Doc. 23), defendants State of Ohio and Governor Kasich's motion to dismiss (Doc. 25), Branson's motion for extension of time to respond to defendant Greer's motion to dismiss (Doc. 27), and Branson's memorandum in support of the motions for appointment of a guardian ad litem. (Doc. 29).

A. Background

This case has its genesis in the Highland County Probate Court. The facts, as recounted by the Fourth District Ohio Court of Appeals, are as follows² :

{¶ 2} In 2007, Branson filed an application in the Highland County Common Pleas Court, Probate Division, to be appointed as the medical and residential guardian of Mollie Florkey. Branson is one of Florkey's four children. Branson alleged that Florkey suffered from dementia, Alzheimers, and a number of other physical conditions.

{¶ 3} Counsel for Malott entered an appearance in the matter and requested a continuance of the hearing on the guardianship application. In the motion, Malott gave notice to the court that he would contest the guardianship application, that he was Florkey's power of attorney, and that he was specifically designated by Florkey to be guardian should the need for a guardian become necessary. Malott attached copies of: (1) a durable power of attorney executed by Florkey designating Malott as Florkey's attorney-in-fact for health care purposes; (2) a living will; and (3) a durable power of attorney for the conveyance of Florkey's real estate, which specifically provided: "This power of attorney shall not be affected by disability of the principal or lapse of time. IN THE EVENT THAT [IT] SHOULD BECOME NECESSARY FOR A GUARDIANSHIP OF MY PERSON AND OR MY ESTATE, I REQUEST THAT THE PROBATE COURT APPOINT MY ATTORNEY IN FACT, JAMES D. MALOTT, AS SUCH GUARDIAN WITHOUT BOND." The real estate power of attorney was recorded in the county recorder's office.

{¶ 4} Branson moved for the appointment of a guardian ad litem for Florkey. Thecourt appointed an attorney for Florkey. Branson later retained counsel on her own behalf.

{¶ 5} Florkey's attorney later filed a report with the court indicating that Florkey "made it very clear that she did not want her son [Malott] to have guardianship * * *." Branson moved to add Malott as a party to the action.

{¶ 6} At the beginning of the hearing, Florkey's attorney informed the court that Florkey had changed her position with regard to guardianship. Florkey apparently did not want Branson to be named as her guardian. Instead, she wanted to maintain the "status quo," i.e., she wanted no guardian appointed. Nevertheless, Florkey's attorney requested that the court respect her original wishes as set forth in her power of attorney, i.e., Malott be named guardian of her person and estate.

{¶ 7} During the hearing, the parties specifically litigated the suitability of Malott to be guardian for Florkey. Following the hearing, the court granted Branson's motion to add Malott as a party to the action and then denied and dismissed Branson's application. The court further found that Malott was competent, suitable, and willing to accept the appointment as guardian, and as a result, R.C. 2111.121(B) required the appointment of Malott as Florkey's guardian.

In re Guardianship of Florkey, No. 07CA22, 2008 WL 4384044, at * 1 -2 (Ohio App. 4 Dist. Sept. 22, 2008).

Branson filed a pro se appeal challenging the guardianship, the trial court's alleged failure to review and investigate the evidence, and the effectiveness of Florkey's counsel. The Ohio Court of Appeals upheld the appointment of Malott as Florkey's guardian, specifically noting the trial court's finding that Malott's testimony concerning Florkey's care at the nursing facility was more credible than Branson's lay opinion to the contrary. Id. at *3. The appellate court also overruled Branson's contentions that Florkey was denied the effective assistance of counsel and the right to participate in the probate proceedings, ruling that Branson's interests were "not clearly aligned with Florkey's interests" and Branson did not have standing to assert Florkey's claims. Id. at *4-5.

Branson then filed suit as "next-best-friend/daughter" of Mollie Florkey against Malott inthe Highland County Court of Common Pleas alleging:

Malott acted under "the auspices of [a] fraudulent POA and fraudulent guardianship appointment[.]" Branson further claimed that Malott violated both Florkey's constitutional rights and Florkey's rights under the Americans With Disabilities Act... . Branson asked (1) that Malott's Power of Attorney be cancelled and (2) that Malott "be made to account honestly and fully for his acts, conducts [sic] and financial dealings under the POA document, and that an award of unspecified damages be awarded to [Florkey] and her estate for all wrongs and unauthorized acts, conducts [sic] and dealings which either benefited the defendant and worked a damage to [Florkey] and her estate."

Florkey v. Malott, No. 11CA9, 2011 WL 4638735, at * 1 (Ohio App. 4 Dist. Sept. 30, 2011). The trial court granted Malott's motion to dismiss and Branson appealed. The Ohio Court of Appeals upheld the dismissal of Branson's complaint against Malott, finding that Branson was not the real party in interest and, unlike Malott who was Florkey's guardian, did not have standing to bring claims on Florkey's behalf. Id. at *3-4 (citing Ohio Civ. R. 17(c)). However, the appeals court determined that the trial court lacked jurisdiction over Branson's guardian-removal claim and instructed the trial court to transfer Branson's guardian-removal claim to the probate court, which had exclusive jurisdiction over the claim. Id. at *4.

Less than two months later, Branson filed suit in this federal court purporting to bring this action on M.F.'s behalf as her "next-friend." The complaint alleges the following facts: M.F. is a 93-year old adult ward.³ (Doc. 1, Compl. ¶¶ 4, 10). Branson initiated guardianship proceedings in 2007 which resulted in the appointment of Malott, M.F.'s son and designated power of attorney, as her guardian. (Id. at ¶¶ 5, 12, 16 n.3). Branson alleges that M.F. was "kept from appearing personally, denied all access to and all opportunity to be heard in the November14, 2007 guardianship proceedings, and to date, in the entirety of the guardianship matter as a whole." (Id. at ¶ 13). The complaint states that M.F. has been kept against her will in a nursing home not of her choosing, "isolated from freely associating with her friends and family members of her choosing," not consulted about the disposition of her substantial estate properties, and denied adequate medical care and treatment. (Id. at ¶¶ 14-17). The complaint further alleges that defendants "Probate Division" and Kevin Greer failed to command the appearance of M.F., obtain her testimony, or accept her written submissions during the guardianship proceedings. (Id. at ¶ 19). Finally, the complaint alleges that the "State of Ohio and its officers, agents and instrumentalities, including without limitation Defendants 'Probate Division' and Kevin Greer, have received an untold number of communications both written and verbal alleging, among other things, abuse, neglect and financial exploitation of the Plaintiff [and] . .. have failed and refused to undertake to protect Plaintiff with a proper authoritative investigation into the complaints, and protect Plaintiff as is their ministerial and constitutional duty." (Id. at ¶ 19).

B. Resolution

As an initial matter, the Court notes that Branson lacks standing to pursue this action on her own behalf as the complaint alleges no claims or damages personal to Branson. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1992) ("Art. Ill requires the party who invokes the court's authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.. . .") (citation omitted). In addition, Branson, who is not a lawyer and who is proceeding pro se, cannot legally represent her mother in this matter. See Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002). Seemingly in recognition of this fact, Branson hasmoved that a guardian ad litem be appointed to represent her mother in this matter. See Docs. 2, 5 and Doc. 29 at 2. Yet, the question the Court must first resolve is whether Branson had the legal authority to file this suit on behalf of M.F. in the first instance.

Capacity to sue is governed by Fed. R. Civ. P. 17(b) and is...