United States of America v. One Parcel of Property Located at 9607 Lee Road 72, Waverly, Lee County, Alabama et al, No. 3:2011cv00937 - Document 86 (M.D. Ala. 2012)
Court Description: OPINION AND ORDER as follows: (1) Dr. Karl Kirkland is appointed to perform a psychological evaluation of claimant Broderick Zellers. The United States is to bear the cost of Dr. Kirkland's time and expenses. (2) Within 14 days, claimant Zeller s is to meet with Dr. Kirkland for the purpose of having a psychological evaluation conducted. (3) Within 21 days, Dr. Kirkland shall prepare a psychological report and shall file said report with this court as further set out. Signed by Honorable Judge Myron H. Thompson on 11/21/2012. (jg, )
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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) ONE PARCEL OF PROPERTY ) LOCATED AT 9607 LEE ROAD ) 72, WAVERLY, LEE COUNTY, ) ALABAMA, WITH ALL ) APPURTENANCES THEREON, ) (Tax Map No. ) 43-06-07-26-0-000-026.003) ) et al., ) ) Defendants. ) CIVIL ACTION NO. 3:11cv937-MHT (WO) OPINION AND ORDER The cause is before the court on the government s request for appointment of claimant Broderick Zellers. a guardian ad litem for The court cannot rule on the government s request at this time because the record contains insufficient evidence for the court to determine Zellers s competency to participate in this civil asset forfeiture proceeding. Accordingly, the court will order a psychological evaluation of Zellers s legal competency. Federal Rule of Civil Procedure 17(c) provides for the appointment of a guardian ad litem to protect an incompetent person in a civil action. However, Rule 17(c) does not define incompetent person. agrees with other courts that have This court referred to preceding subsection, 17(b), for its definition. the See, e.g., Thomas v. Humfield, 916 F.2d 1032, 1035 (5th Cir. 1990); Donnelly v. Parker, 486 F.2d 402, 406 (D.C. Cir. 1973); Scannavino v. Florida Dep t of Corr., 242 F.R.D. 662, 663 (M.D. Fla. 2007) (Merryday, J.). Rule 17(b) requires individual federal courts to determine an litigant s capacity to sue, and hence the need for a guardian ad litem, by the law of the individual s domicile. Zellers s State of domicile is Alabama. The Alabama Rules of Civil Procedure provide only that the capacity to sue or be sued shall be determined by the law of this 2 state, and, like the providing a definition. Alabama Code incapacitated guardianship. does, federal stop short Ala. R. Civ. P. 17(b). however, person rules, offer within a its of The definition of chapter on 1975 Ala. Code ยง 26-2A-20(8). In this context, Alabama law defines incapacitated person as: Any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, physical or mental infirmities accompanying advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions. Id. The critical question is thus whether a person lack[s] sufficient understanding or capacity to make or communicate responsible decisions. Id. Although Alabama state courts have not directly held that this definition applies to determining a person s capacity to litigate, one federal court has employed it for that purpose. See Brown v. Williamson, 134 F. Supp. 2d 1286, 1291 (M.D. Ala. 2001) (Albritton, J.). 3 Without the benefit of clear state directive, other federal courts have analyzed the civil competency question in terms of whether the litigant understand[s] the nature and effect of the litigation. Bodnar v. Bodnar, 441 F.2d 1103, 1104 (5th Cir. 1971);* Scannavino, 242 F.R.D. at 664. This federal standard strikes the court as but a more specific application of Alabama s incapacitated person definition to the civil litigation context. In other words, a litigant who cannot understand the nature and effect of the litigation is a litigant who is incapable of making or communicating responsible decisions as to that litigation. Therefore, although this court finds no state case law directly on point, Alabama s statutory definition of incapacitated person provides enough guidance for the court to make an educated guess as to how the Alabama * In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business September 30, 1981. 4 courts would approach this issue. Cas. & See Smigiel v. Aetna Sur. Co., 785 F.2d 922, 925 (11th Cir. 1986); Trail Builders Supply Co. V. Reagan, 409 F.2d 1059, 1061 (5th Cir. 1969). The court thus views the relevant inquiry to be whether there is sufficient evidence in the record to determine that Zellers is mentally impaired to the extent that he cannot understand the nature and effect of this litigation. Letters providers from show Zellers s that he has mental-health been schizophrenia for over 25 years. in treatment treatment for Less than one year ago he was hospitalized for an acute decompensation with depression. Ex. 8). Letter from Brenda Moon, MSN (Doc. No. 56 Zellers s sister, Yolanda Zellers, states that his ability to comprehend legal issues is limited to non-existent. Aff. Yolanda Zellers (Doc. No. 56 Ex. 6). Based on the foregoing representations, this court has serious concerns about Zellers s understand the current legal proceeding. 5 ability to However, the court is not prepared to declare Zellers incompetent without the benefit of a full and timely report from a mental healthcare professional. The court thus will order a psychological evaluation to determine whether Zellers is able to understand the legal nature and effect of the pending litigation. agree that Dr. Karl The court and the parties Kirkland, with Kirkland & King Clinical & Forensic Psychologists PC, should complete the evaluation. The government has agreed to pay the cost of the evaluation. *** Accordingly, it is ORDERED as follows: (1) Dr. Karl Kirkland is appointed to perform a psychological evaluation of claimant Broderick Zellers. The United States is to bear the cost of Dr. Kirkland s time and expenses. (2) Within 14 days, claimant Zellers is to meet with Dr. Kirkland for the purpose of having a psychological evaluation conducted. 6 (3) Within 21 days, Dr. Kirkland shall prepare a psychological report and shall file said report with this court. history The report shall include claimant Zellers s and present symptoms; a description of the psychiatric, psychological, and medical tests that were employed and their results; Dr. Kirkland s findings; and Dr. Kirkland s opinions as to claimant Zellers s diagnosis and prognosis and whether claimant Zellers is suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and effect of the pending litigation. DONE, this the 21st day of November, 2012. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE
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