Mary Bush v. Kimberly Goodall ( 2018 )

CLD-126 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-3568
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MARY BUSH, Pro Se Daughter, Next Friend
and Trustee of Genevieve Bush,
Appellant
v.
KIMBERLY GOODALL, (Administrator) “Park Lane
at Bellingham” (Senior Lifestyles Corporation)
Senior Lifestyle Management, LLC, SL Master
Lessee II, LLC); DR. SAM J. SUGAR
__________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2-17-cv-01379)
District Judge: Timothy J. Savage
__________________________________
Submitted for Possible Dismissal under 28 U.S.C. § 1915(e)(2) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 15, 2018
Before: CHAGARES, GREENAWAY, JR. and GREENBERG, Circuit Judges
(Opinion filed: April 24, 2018)
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OPINION ∗
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∗
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Mary Bush appeals from an order of the District Court dismissing a petition for
writ of habeas corpus, 28 U.S.C. § 2241, which she filed on behalf of her incapacitated
elderly mother. For the reasons that follow, we will summarily affirm.
Bush filed a “next friend” petition for writ of habeas corpus, 28 U.S.C. § 2241, in
the United States District Court for the Eastern District of Pennsylvania on behalf of her
elderly mother, Genevieve Bush, and paid the $5.00 filing fee. Mary alleged that
Genevieve is not competent to manage her own affairs; is a “prisoner” of Kimberly
Goodall, the Administrator of Park Lane at Bellingham nursing home and Senior
Lifestyles Corporation; and has been detained in the nursing home without due process
by Chester County Adult Protective Services and the Pennsylvania Department of Aging
since May 18, 2015. Although she styled it as a habeas corpus petition, Mary did not
appear to seek her mother’s release from the “custody” of the state; rather, she challenged
the conditions of Genevieve’s “confinement” in the nursing home. Mary alleged that
Genevieve is deprived of her loving company because the nursing home has barred her
from visiting Genevieve, and that the nursing home is not providing proper medical care
for Genevieve, in violation of 42 U.S.C. § 1983 and § 1985(3) and the federal regulations
pertaining to skilled nursing facilities. Mary also appeared to allege a violation of the
Americans with Disabilities Act, 42 U.S.C. § 12182(a).
Mary further alleged that exhaustion of state remedies was not possible and
referred the District Court to a series of state court decisions relating to the matter of
Genevieve’s care. See Docket Entry No. 10. We note that, in In re: Bush, 2014 WL
2
10917673 (Pa. Super. Ct. June 24, 2014), the Pennsylvania Superior Court affirmed a
decision by the Chester County Court of Common Pleas, Orphan’s Court, removing Mary
as Genevieve’s co-guardian. In Matter of Bush, 2017 WL 679952 (Pa. Super. Ct. Feb.
21, 2017), the Superior Court affirmed the lower court’s decision removing Mary’s
brother Michael Bush as co-guardian of Genevieve and appointing Guardian Services of
Pennsylvania as sole guardian. Mary asserts that Genevieve now has a court-appointed
guardian, Carol J. Hershey.
In an order entered on October 27, 2017, the District Court dismissed the habeas
corpus petition on the ground that Mary Bush is not an attorney and may not represent
Genevieve in this proceeding. In the margin, the Court further stated that “Mary Bush,
with an attorney, may represent Genevieve Bush if she is duly appointed as her guardian
or representative by the state court.” Mary filed a notice of appeal and also moved for
reconsideration, arguing that the habeas corpus statute, 28 U.S.C. § 2242, allows the §
2241 petition to be signed and verified by the person seeking relief or someone acting on
behalf of that person, and that her mother’s mental incapacity warranted the use of the
“next friend” procedure. She further reiterated her view that there was a conflict of
interest between Genevieve, on the one hand, and her court-appointed guardian and the
nursing home, on the other. In an order entered on November 30, 2017, the District
Court denied reconsideration on the ground that the motion presented no new facts or
issues.
The appeal is ripe for disposition. Fed. R. App. P. 4(a)(4)(B)(i). We have
jurisdiction under 28 U.S.C. § 1291. Our Clerk granted Mary Bush leave to appeal in
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forma pauperis and advised her that the appeal was subject to summary dismissal under
28 U.S.C. § 1915(e)(2)(B) or summary action under Third Cir. LAR 27.4 and I.O.P. 10.6.
Mary was invited to submit argument in writing and she has done so. She argues that the
District Court should have granted her “next friend” standing to proceed on behalf of her
mother.
We will summarily affirm on the ground that Mary Bush may not proceed in
federal court without an attorney. A “next friend” is one who pursues an action on behalf
of the real party in interest, when that person cannot appear on her own behalf for some
legitimately recognized reason “such as inaccessibility, mental incompetence, or other
disability.” Whitmore v. Arkansas, 495 U.S. 149, 163 (1990). “Next friend” standing is
proper where the “next friend” applicant has a significant relationship with the real party
in interest, and the “next friend” applicant is “truly dedicated to the best interests of the
person on whose behalf [s]he seeks to litigate.” Id. at 163-64 (citations omitted).
The District Court correctly determined, however, that Mary Bush must have an
attorney in order to proceed in federal court with her “next friend” civil action. We held
in Osei-Afriyie by Osei-Afriyie v. Medical College of Pennsylvania, 937 F.2d 876 (3d
Cir. 1991), that a next friend may not, without the assistance of counsel, bring suit on
behalf of a minor party. See also Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986)
(per curiam ) (“[U]nder Fed. R. Civ. P. 17(c) and 28 U.S.C. § 1654, a minor child cannot
bring suit through a parent acting as next friend if the parent is not represented by an
attorney.”). A litigant in federal court has a right to act as his or her own counsel, 28
U.S.C. § 1654 (“In all courts of the United States the parties may plead and conduct their
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own cases personally or by counsel....”), but if, as we held in Osei-Afriyie, 937 F.2d at
883, a non-attorney parent must be represented by counsel in bringing an action on behalf
of his minor child, a non-attorney adult child must also be represented by counsel in
bringing an action on behalf of her incapacitated elderly parent. The choice to appear
without representation by an attorney is not a true choice for the elderly parent deemed
incapacitated under state law, just as it is not for the minor child. The rule prohibiting a
next friend from litigating pro se on behalf of another person exists to protect the rights of
the represented party. Elustra v. Mineo, 595 F.3d 699, 705-06 (7th Cir. 2010). 1 “Many
good reasons exist for the strict adherence to this rule, not the least of which is that a
party may be bound, or [her] rights waived, by [her] legal representative.” Id. at 706
(quoting Lewis v. Lenc-Smith Mfg. Co., 784 F.2d 829, 830 (7th Cir. 1986)). We are
aware that some courts may permit an exception to the rule for particular kinds of
proceedings, see, e.g., Machadio v. Apfel, 276 F.3d 103, 106-08 (2d Cir. 2002) (parents
may bring claims pro se on behalf of their children in an effort to secure social security
benefits), but we are unaware of any exception for a lawsuit of this nature, where habeas
jurisdiction might reasonably be questioned and which is based in part on § 1983. 2
1
The rule also “jealously guards the judiciary’s authority to govern those who practice in
its courtrooms.” Myers v. Loudoun County Public Schools, 418 F.3d 395, 400 (4th Cir.
2005).
2
Because the District Court did not reach this issue, we express no view on whether the
habeas corpus statutes, including 28 U.S.C. § 2254, confer jurisdiction on federal courts
to challenge state court probate decisions involving incapacitated elderly persons, cf.
Lehman v. Lycoming County Children’s Services Agency, 458 U.S. 502, 510 (1982)
(federal habeas has never been available to challenge parental rights or child custody).
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In sum, it is not in the interest of elderly incapacitated persons that they be
represented by non-attorneys. Where they have claims that require adjudication, they are
entitled to trained legal assistance so that their rights may be fully protected. Cf. Osei-
Afriyie, 937 F.2d at 883. Accordingly, we will affirm the judgment of the District Court
on this basis. We would add, however, that under the circumstances presented here, the
fact that Genevieve has a guardian does not necessarily prevent Mary from bringing this
action, with an attorney, as a “next friend.” Under Federal Rule of Civil Procedure 17(c),
where an incompetent person is represented by “a general guardian, committee,
conservator, or other like fiduciary,” that representative is the proper person to sue or
defend on her behalf. Fed. R. Civ. P. 17(c)(1). Only if the incompetent person is
unrepresented by such a guardian may she be represented by a “next friend.” Fed. R.
Civ. P. 17(c)(2). Here, Mary alleges a conflict of interest involving the court-appointed
guardian. In such a case, Rule 17(c), “gives a federal court power to authorize someone
other than a lawful representative to sue on behalf of an infant or incompetent person
where that representative is unable, unwilling or refuses to act or has interests which
conflict with those of the infant or incompetent.” Sam M. ex rel. Elliott v. Carcieri, 608
F.3d 77, 85 (1st Cir. 2010) (quoting Ad Hoc Committee of Concerned Teachers v.
Greenburgh No. 11 Union Free School District, 873 F.2d 25, 29 (2d Cir. 1989)).
Provided that she establishes a basis for federal subject matter jurisdiction and shows that
Genevieve’s court-appointed guardian has an actual conflict of interest, Mary Bush, with
an attorney, may apply to the District Court for “next friend” standing to bring this
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action. Whether she can meet the requirements for “next friend” standing, see Whitmore,
495 U.S. at 163-64, we need not decide.
For the foregoing reasons, we will summarily affirm the orders of the District
Court dismissing the § 2241 petition and denying reconsideration.
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