NICHOLSON v. ZIMMERMAN

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOSHUA NICHOLSON, )

)

Plaintiff, )

)

v. ) 1:19cv585

)

JULIE ZIMMERMAN, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This case comes before the Court on the “Motion to Appoint

Whitaker Rose Guardian Ad Litem for Plaintiff Joshua Nicholson”

(Docket Entry 29) (the “Motion”). For the reasons that follow, the

Court will deny the Motion.

BACKGROUND

In June 2019, Joshua Nicholson (the “Plaintiff”) initiated a

lawsuit for alleged violations of his constitutional and statutory

rights during his incarceration with the North Carolina Department

of Public Safety (the “NCDPS”) in the summer of 2016. (See

generally Docket Entry 1 (the “Complaint”); see also Docket Entry

23 (the “Amended Complaint”).)1 Three months later, Plaintiff’s

attorney, F. William DeVore, IV (the “Plaintiff’s Counsel”), filed

the Motion “pursuant to Rule 17 of the Federal Rules of Civil

Procedure” (the “Rules”), seeking an order appointing “Whitaker

Rose [(at times, “Rose”)] to serve as guardian ad litem for

1 Plaintiff verified neither the Complaint nor the Amended

Complaint. (See generally Docket Entries 1, 23.)

[Plaintiff]”2 on the grounds that Plaintiff “is a mentally

incapacitated adult” (Docket Entry 29 at 1 (emphasis omitted)).

(See generally id. at 1-2.) According to the Motion, “Plaintiff’s

[C]ounsel has discussed this [M]otion with both [Plaintiff] and his

caregiver, Julie Thompson [(at times, “Thompson”)] ([Plaintiff’s]

grandmother), and they both consent and have received proper notice

of the [M]otion.” (Id.)

In support of the Motion, Plaintiff’s Counsel submitted a

“medical evaluation of [Plaintiff].” (Id. at 1.) The referenced

evaluation, dated August 24, 2018, indicates that Plaintiff’s

Counsel referred Plaintiff to the evaluator “for an assessment of

his current intellectual functioning.” (Docket Entry 29-1 (the

“Evaluation”) at 1.) Conducted by a licensed psychologist, the

Evaluation concludes:

Currently, [Plaintiff] is·performing in the Extremely Low

range of intellectual functioning with significant

impairments across all aptitude areas measured, including

verbal and nonverbal abilities. At present, his current

FSIQ score of 52 meets the clinical criteria for moderate

intellectual disability (ICD-10 code F71). This

diagnosis is significant and should play a role in

determining appropriate placement and resources in both

educational and occupational settings.

(Id. at 4.)

2 Alternatively, the Motion asks the Court to “appoint . . .

some other fit and proper person to be the appointed guardian ad

litem for [Plaintiff].” (Docket Entry 29 at 2.) [Citations herein

to Docket Entry pages utilize the CM/ECF footer’s pagination.]

2

Finally, the Motion states that “Rose is a duly licensed and

practicing attorney with a principal place of business in

Mecklenburg County and is fit and proper to serve in this capacity,

and is prepared to act in the best interest of [] Plaintiff.

Exhibit B is Mr. Rose’s Acceptance of Appointment.” (Docket Entry

29 at 1.) In turn, the referenced Acceptance of Appointment states

only that Rose “accept[s] the foregoing appointment as Guardian Ad

Litem for the above named mentally incapacitated adult and agree[s]

to act faithfully and diligently in said capacity.” (Docket Entry

29-2 at 1.)

The Motion provides no further details regarding Rose’s

qualifications to serve as a guardian ad litem, Plaintiff’s alleged

status as a “mentally incapacitated adult” (Docket Entry 29 at 1),

or the propriety of appointing a guardian ad litem for Plaintiff

under Rule 17. (See generally Docket Entry 29.) As such, the

Court ordered Plaintiff’s Counsel to file a memoranda explaining,

inter alia, “how the Court should assess the request for

appointment of a guardian ad litem for Plaintiff generally [and

Rose’s] suitability for that role in particular.” (Text Order

dated Oct. 10, 2019.) In response to the Court’s order,

Plaintiff’s Counsel filed a memoranda (Docket Entry 56) (the

“Supplement”), as well as supporting affidavits from Thompson

(Docket Entry 56-2) and Rose (Docket Entry 56-3).

3

As relevant here, the Supplement asserts that the Motion’s

purpose “is only to protect [Plaintiff’s] interest.” (Docket Entry

56 at 5.) According to the Supplement, the Motion “is based on []

Defendants’ reports of mental incapacity, [] Plaintiff’s own report

regarding [Plaintiff’s] mental incapacity, as well as learning that

Julia Thompson, [Plaintiff’s] grandmother and caretaker, cannot

properly serve as guardian ad litem due to her limitations. See

Exhibit 2.” (Id.) The Supplement elaborates:

Attached hereto as Exhibit 2 is the Affidavit from Julia

Thompson, whereby she affirms the limitations she has in

caring for [] Plaintiff and also her travel and health

limitations. Further, the collective Defendants, by

their own intake and psychological testing of

[Plaintiff], have confirmed his mental incapacity, and

therefore Plaintiff’s expert report from the 24th of

August 2018 only supports or supplements Defendants’ own

evaluation of Plaintiff.

(Id. at 4 (citation omitted) (citing Docket Entry 23, ¶¶ 14-24).)

The Supplement additionally reports that Plaintiff “has not

yet been adjudicated incompetent because his caretaker and

grandmother, Julia Thompson, has not yet instituted that proceeding

in state court.” (Id.) It further notes that “Plaintiff is also

not asking this Court to make a final determination on

[Plaintiff’s] competence. Instead, [] Plaintiff is only requesting

that a guardian ad litem be appointed to add another layer of

protection for [Plaintiff’s] interests similar to Fonner [v.

4

Fairfax County, 415 F.3d 325 (4th Cir. 2005)].” (Docket Entry 56

at 4.)3 Finally, the Supplement states:

If [] Defendants desire to hire experts to contradict the

prison records regarding [Plaintiff’s] mental capacity,

they certainly have a right to do so. However, Plaintiff

has alleged that [Plaintiff] has the mental capacity of

an 8-year-old, and consistent with Rule 17(c)(2) and

Fonner, since he does not yet have a “duly appointed

representative”, Plaintiff is respectfully moving the

Court to use its discretion and appoint one for

[Plaintiff].

(Id. (citation omitted) (citing Docket Entry 23, ¶ 16).)

As to Rose’s qualifications, the Supplement reports, in full:

Rose is a licensed attorney in North Carolina and South

Carolina, has been practicing for over eight years, and

has successfully tried many complex litigation matters,

and Plaintiff believes Rose would be a fit and proper

person to serve over [Plaintiff’s] interests. Attached

hereto as Exhibit 3 is the Affidavit of Whitaker Rose.

3 In the above-referenced decision, the district court

dismissed from a lawsuit plaintiff William Fonner, a “mentally

retarded man, who” (i) lived in a county group home, (ii) “became

extremely anxious and began to cry when [his appointed guardian ad

litem] discussed the pending lawsuit” with him, (iii) “did not

understand what a ‘lawsuit’ is or what ‘civil rights’ are,” and

(iv) “clearly stated” to his appointed guardian ad litem that he

“does not want to meet [his alleged lawyer],” Fonner, 415 F.3d at

331 (certain internal quotation marks omitted), “finding that he

was not a willing participant in the litigation,” id. at 328. On

appeal, Fonner’s putative lawyer “argue[d] that the district court

was not authorized to appoint a guardian ad litem under [Rule]

17(c) absent a determination of incompetency by the [state].” Id.

at 330. The United States Court of Appeals for the Fourth Circuit

rejected that contention, “find[ing] it entirely appropriate that

the district court, recognizing that Fonner suffered from some

degree of mental retardation, appointed a guardian ad litem to

assist the court in determining the propriety of Fonner’s continued

participation in the litigation.” Id.

5

(Id. at 4-5.) The referenced affidavit indicates that Rose, a

North Carolina trial lawyer who “practices in the areas of complex

litigation, which has included personal injury matters” (Docket

Entry 56-3, ¶ 3), “ha[s] been asked to serve as Guardian Ad Litem

for [Plaintiff]” and has reviewed the Amended Complaint and

Evaluation (id., ¶ 4). The affidavit further reflects that, “based

on the information [Rose] ha[s] reviewed, [he] believe[s] it is

important that [Plaintiff] have a fit and proper person appointed

to represent his interests” (id., ¶ 5), and, if appointed guardian

ad litem for Plaintiff, Rose “will use [his] experience and

education in similar matters, to properly protect [Plaintiff’s]

interests in the pending litigation” (id., ¶ 6).

Should the Court deem Rose inappropriate, the Supplement

alternatively “requests the Court to appoint a ‘duly appointed

representative’ to serve [as guardian ad litem], and [states that]

Plaintiff will defer to the Court’s appointment.” (Docket Entry 56

at 5.) Moreover, “[i]f the Court determines that it is unable to

appoint a guardian due to the fact that [Plaintiff] has not been

declared incompetent, Plaintiff respectfully requests that the

Court allow Plaintiff the opportunity to go forward with

[incompetency] adjudication proceedings [in state court].” (Id.)

More specifically, under such circumstances, Plaintiff proposes a

stay of the instant litigation “while Plaintiff files a petition

for incompetency on behalf of [Plaintiff] in state court.” (Id.)

6

According to the Supplement, “[t]he stay of the federal case will

not prejudice any of the parties, and it will be in furtherance of

protecting [Plaintiff’s] interests since he has the mental capacity

of an 8-year-old child.” (Id. at 5-6.)

Finally, according to Thompson’s affidavit:

Thompson suffers from “no mental or physical disability.”

(Docket Entry 56-2, ¶ 1.) Plaintiff resides with Thompson (see

id., ¶ 3), who “ha[s] been the primary caretaker of [Plaintiff]

since [the ]day he was born” (id., ¶ 2). Plaintiff experienced

“[d]ifficulty in school due to his disabilities (dropping out at

age 16)” and also “[r]eceiv[ed] a significant head injury when he

was 17-years-old.” (Id., ¶ 4.) Plaintiff suffers from

the following disabilities, which make it impossible for

him to effectively communicate or comprehend certain

matters: a. Paranoid schizophrenia; b. Developmental

disorder; c. Extremely low IQ; d. He is unable to work or

obtain work due to his inability to focus on small tasks;

e. He is unable to manage his finances or protect himself

from abuse.

(Id., ¶ 5.) Further, Plaintiff “still struggles with painfully

traumatic memories and paranoia due to [being] rape[d].” (Id.,

¶ 8.)

“[A]lthough [Thompson is] the primary caretaker of

[Plaintiff], [she] cannot drive a vehicle more than 10 miles away

from [her] residence (picking up grandchildren from school, getting

groceries) due to poor and worsening eyesight caused by age,

surgery and car accidents.” (Id., ¶ 6.) “[A]s primary caretaker

7

of [Plaintiff], [Thompson] hired [Plaintiff’s Counsel] to represent

[her] grandson due to him being raped in prison.” (Id., ¶ 7.)

Thompson “ha[s] been informed that [Plaintiff] needs a separate

attorney to protect his interests, and [Thompson] approve[s] the

appointment of Whitaker Rose to act in that capacity.” (Id., ¶ 9.)

Finally, “while [Thompson is] the caretaker of [Plaintiff],

[her] own limitations prevent [her] from driving [Plaintiff] to

[Plaintiff’s Counsel’s] office or anywhere outside of close to

[her] home.” (Id., ¶ 10.) Plaintiff’s Counsel “has always had to

come to [Thompson’s] house in order to see [Plaintiff] in person.”

(Id., ¶ 11.) Thompson “genuinely fear[s] for [her] grandson’s

health each and every day, and [believes] that it is in the best

interests of [Plaintiff] to have Whitaker Rose serve as his

guardian ad litem.” (Id., ¶ 12.)

DISCUSSION

I. Relevant Standards

Rule 17 provides:

A minor or an incompetent person who does not have a duly

appointed representative may sue by a next friend or by

a guardian ad litem. The [C]ourt must appoint a guardian

ad litem — or issue another appropriate order — to

protect a minor or incompetent person who is

unrepresented in an action.

Fed. R. Civ. P. 17(c)(2) (emphasis added). “This Rule does not

indicate the basis upon which a court determines the predicate fact

that a party not already legally adjudicated to be so, is presently

‘incompetent.’” Hudnall v. Sellner, 800 F.2d 377, 385 (4th Cir.

8

1986). Moreover, even for a litigant adjudicated incompetent, “the

duty laid by Rule 17(c) upon the court [remains only] to appoint a

guardian ad litem or to make available or take notice of the

existence of other adequate means of protection, that is, to

exercise an informed discretion in the matter.” Id.; see also

Powell v. Symons, 680 F.3d 301, 303 (3d Cir. 2012) (explaining

that, despite its mandatory language, Rule 17 contains “no

suggestion which factors should trigger the district court’s duty

of inquiry as to whether the individual at issue is incompetent,”

and, “[a]s a result, responsibility for Rule 17 appears generally

to be left to the discretion of the district courts”); Michelson v.

Duncan, No. 1:17cv50, 2018 WL 4474661, at *6 (W.D.N.C. Sept. 18,

2018) (“A court is required to take whatever measures it deems

proper to protect an incompetent person during litigation,

including the appointment of a guardian ad litem or next friend.

The court has broad discretion and need not appoint a guardian ad

litem if the person is or can otherwise be adequately protected,

but is under a legal obligation to consider whether the person is

adequately protected.” (citation omitted)), reconsideration denied,

No. 1:17cv50, 2018 WL 4620618 (W.D.N.C. Sept. 26, 2018), and appeal

dismissed sub nom. Michelson v. Coon, 754 F. App’x 226 (4th Cir.

2019), and reconsideration denied, No. 1:17cv50, 2019 WL 2366445

(W.D.N.C. June 3, 2019).

9

In other words, although “Rule 17(c)(2) allows the court to

appoint a guardian ad litem, it does not compel it to do so, but

rather grants it considerable discretion to issue an ‘appropriate

order’ to protect the interest of an unrepresented incompetent

litigant.” Lanahan v. Clifton T. Pirkins Hosp. Ctr., No. CV

16-821, 2017 WL 3668751, at *2 (D. Md. Aug. 23, 2017) (emphasis

added). As the United States Court of Appeals for the Fourth

Circuit has explained:

What [Rule 17(c)(2)] undoubtedly contemplates is that

form of mental deficiency which — whether or not

accompanied by other forms of personality disorder —

affects the person’s practical ability “to manage his or

her own affairs.” This is the general test applied by

the civil law for making adjudications of “incompetency”

for a variety of purposes. It is the test in [the state

where the relevant litigant lived]. See Md. Est. &

Trusts Code Ann. § 13-201(c)(1) (“unable to manage his

property and affairs effectively because of . . . mental

disability . . .”). It is the test [the Fourth Circuit]

ha[s] applied to determine whether a party was

“incompetent” to defend without representation in civil

litigation. See Beckley National Bank [v. Boone], 115

F.2d [513,] 517-19 [(4th Cir. 1940)] (“test is the

ability to know the nature, character and effect of one’s

acts, and to understand the subject matter of business

transactions”). In common experience, there is of course

no necessary relationship between “mental incompetence”

in this special sense and various forms of mental

derangement or personality disorder that may cause

utterly bizarre and destructive conduct in litigation as

in other realms.

Hudnall, 800 F.2d at 385.

Consistent with the foregoing quotation, courts look to state

law to determine a litigant’s competency under Rule 17. See

Lanahan, 2017 WL 3668751, at *2 (“[Rule] 17(b)[] provides, in

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pertinent part, that a determination regarding the capacity to sue

or be sued is controlled by the law of the party’s state of

domicile.”); Fed. R. Civ. P. 17(b)(1) (“Capacity to sue or be sued

is determined . . . for an individual who is not acting in a

representative capacity, by the law of the individual’s

domicile[.]”). As relevant here (see Docket Entry 56-2, ¶ 3),

North Carolina defines an “[i]ncompetent adult” as an adult “who

lacks sufficient capacity to manage the adult’s own affairs or to

make or communicate important decisions concerning the adult’s

person, family, or property whether the lack of capacity is due to

mental illness, intellectual disability, epilepsy, cerebral palsy,

autism, inebriety, senility, disease, injury, or similar cause or

condition.” N.C. Gen. Stat. § 35A-1101(7). To adjudicate an

individual incompetent, “the finder of fact” in a state court

incompetency adjudication must “find[] by clear, cogent, and

convincing evidence that the [individual] is incompetent.” N.C.

Gen. Stat. § 35A-1112(d).

To aid in this assessment, a “multidisciplinary evaluation may

be considered at the hearing for adjudication of incompetence.”

N.C. Gen. Stat. § 35A-1111(e). A multidisciplinary evaluation

contains current medical, psychological, and social work

evaluations as directed by the clerk and . . . may

include current evaluations by professionals in other

disciplines, including without limitation education,

vocational rehabilitation, occupational therapy,

vocational therapy, psychiatry, speech-and-hearing, and

communications disorders. The evaluation is current if

made not more than one year from the date on which it is

11

presented to or considered by the court. The evaluation

shall set forth the nature and extent of the disability

and recommend a guardianship plan and program.

N.C. Gen. Stat. § 35A-1101(14).

According to the North Carolina Supreme Court, although “there

are varying degrees of mental inadequacy, the law will not (and

should not) deprive a person of the control of his lawsuit or his

property unless he is ‘incompetent from want of understanding to

manage his own affairs.’” Hagins v. Redevelopment Comm’n of

Greensboro, 275 N.C. 90, 104, 165 S.E.2d 490, 499 (1969). The

North Carolina Supreme Court “understand[s] the word Affairs to

encompass a person’s entire property and business” and recognizes

that “[i]ncompetency to administer one’s property obviously depends

upon the general frame and habit of mind.” Id. (internal quotation

marks omitted). As such, “to authorize the appointment of next

friend or guardian ad litem, it is not enough to show that another

might manage a man’s property more wisely or efficiently than he

himself.” Id. at 105, 165 S.E.2d at 500. Put another way, “no man

shall be interfered with in his personal or property rights by the

government, under the exercise of its parental authority, until the

actual and positive necessity therefor is shown to exist.” Id.

(internal quotation marks omitted). Finally, although the North

Carolina Supreme Court “ha[s] found no completely satisfactory

definition of the phrase ‘incompetent from want of understanding to

manage his own affairs’ . . . ., mere weakness of mind will not be

12

sufficient to put a person among those who are incompetent to

manage their own affairs.” Id.

II. Analysis

At present, the evidence’ before the Court reflects:

Plaintiff suffers from an “[e]xtremely low 10,” ™“[p]aranoid

schizophrenia,” and an unspecified “[dJevelopmental disorder”

(Docket Entry 56-2, { 5), as well as paranoia and traumatic

memories (id., @ 8). He dropped out of school at age 16, after

experiencing “[d]Jifficulty in school due to his disabilities,” and

additionally experienced “a significant head injury” (id., JI 4)

approximately fourteen years ago (see id., TI 2, 4), the continuing

impact of which remains unclear (see id., FI 4). Thompson, who has

served as Plaintiff’s primary caretaker since his birth 31 years

ago (see id., FI 2), reports that his disabilities “make it

impossible for him to effectively communicate or comprehend certain

matters.” (Id., 75.) She further avers that Plaintiff “is unable

4 In moving for Rose’s appointment as Plaintiff’s guardian ad

litem, the Motion and Supplement rely on various unverified factual

allegations. (See, e.g., Docket Entry 56 at 4, 6 (asserting that

“Defendants, by their own intake and psychological testing of

[Plaintiff], have confirmed his mental incapacity,” as well as that

“[Plaintiff] has the mental capacity of an 8-year-old child”).)

However, unsworn assertions, whether in a complaint or a memoranda,

do not constitute admissible evidence. See, e.g., Dillon v. BMO

Harris Bank, N.A., No. 1:13cv897, 2014 WL 911950, at *2 (M.D.N.C.

Mar. 10, 2014) (“Statements in briefs are not evidence ... .”)

(collecting cases); Reeves v. Hubbard, No. 1:08cv721, 2011 WL

4499099, at *5 n.14 (M.D.N.C. Sept. 27, 2011) (explaining that,

unless “sworn or made under penalty of perjury,” factual

allegations in court filings “do not constitute evidence”),

recommendation adopted, slip op. (M.D.N.C. Nov. 21, 2011).

13

to work or obtain work due to his inability to focus on small

tasks,” as well as that “[h]e is unable to manage his finances or

protect himself from abuse.” (Id.)

Additionally, a licensed psychologist concluded that, two

years ago, Plaintiff “[wa]s performing in the Extremely Low range

of intellectual functioning with significant impairments across all

aptitude areas measured” and, at that point, he met “the clinical

criteria for moderate intellectual disability.” (Docket Entry 29-1

at 4.) Per the psychologist, hired to evaluate Plaintiff’s

“current intellectual functioning” (id. at 1), that diagnosis

qualified as “significant and should play a role in determining

appropriate placement and resources in both educational and

occupational settings” (id. at 4).

However, the Evaluation never opines about Plaintiff’s legal

competency. (See generally Docket Entry 29-1.) In addition, the

Evaluation does not constitute a multidisciplinary evaluation under

North Carolina law, see N.C. Gen. Stat. § 35A-1101(14), and it

already had become outdated under North Carolina law, see N.C. Gen.

Stat. § 35A-1101(14), when presented to the Court (see Docket Entry

29 at 2; Docket Entry 29-1 at 1). In any event, a low IQ or other

mental disability does not, by itself, suffice to establish

incompetency. See, e.g., Matter of Z.V.A., 373 N.C. 207, 209-11,

835 S.E.2d 425, 428-29 (2019) (rejecting “argu[ment] that the

district court abused its discretion by failing to address whether”

14

a litigant with an “approximate IQ of 64” “required a guardian ad

litem”); Hagins, 275 N.C. at 105, 165 S.E.2d at 500 (“[M]ere

weakness of mind will not be sufficient to put a person among those

who are incompetent to manage their own affairs.”).

Moreover, the record confirms Plaintiff’s recent prior

criminal incarceration. (See Docket Entry 56-2, ¶ 7 (averring that

Plaintiff was “raped in prison”).)5 North Carolina law permits

criminal conviction and imprisonment of only competent individuals.

See, e.g., State v. Minyard, 231 N.C. App. 605, 622, 753 S.E.2d

176, 188 (2014) (explaining that, under North Carolina law, “[n]o

person may be tried, convicted, sentenced, or punished for a crime

when by reason of mental illness or defect he is unable to

understand the nature and object of the proceedings against him, to

comprehend his own situation in reference to the proceedings, or to

assist in his defense in a rational or reasonable manner” (internal

quotation marks omitted)). The Motion further represents that

Plaintiff’s Counsel discussed the Motion with Plaintiff, who

consented to it. (See Docket Entry 29 at 1-2.) Such behavior

militates against a finding of incompetency, as it reflects an

ability to both “manage [Plaintiff’s] own affairs” and “make [and]

communicate important decisions concerning [Plaintiff’s] person

. . . [and] property,” N.C. Gen. Stat. § 35A-1101(7).

5 Indeed, the Amended Complaint indicates that Plaintiff has

“been incarcerated” with the NCDPS on three separate occasions.

(Docket Entry 23, ¶ 17.)

15

Accordingly, given the limited, dated, and contradictory

nature of the current record, the Court finds that Plaintiff’s

Counsel has not established Plaintiff’s incompetency within the

meaning of Rule 17. See Hagins, 275 N.C. at 105, 165 S.E.2d at 500

(“[N]o man shall be interfered with in his personal or property

rights by the government, under the exercise of its parental

authority, until the actual and positive necessity therefor is

shown to exist.” (internal quotation marks omitted)). Plaintiff’s

Counsel suggests, however, that the Court need not find Plaintiff

incompetent to appoint a guardian ad litem under Rule 17. (See

Docket Entry 56 at 4 (“Plaintiff is also not asking this Court to

make a final determination on [Plaintiff’s] competence. Instead,

[he] is only requesting that a guardian ad litem be appointed to

add another layer of protection for [his] interests similar to

Fonner.”).) To the extent the Court possesses such authority, see,

e.g., Johnson v. City of Fayetteville, No. 5:12cv456, 2014 WL

3738310, at *7 (E.D.N.C. July 29, 2014) (“[T]he court recognizes

that [a plaintiff] suffers from some degree of mental infirmity

[a]ffecting her ability to participate in this litigation.

Accordingly, in its discretion, the court finds it appropriate to

appoint a guardian ad litem to assist the court in [the

plaintiff’s] continued participation in this litigation.”), the

Court declines to exercise it on the current record.

16

In this regard, it bears emphasis that, unlike in

circumstances where a litigant’s pro se status may counsel

appointment of a guardian ad litem, Plaintiff does not operate pro

se. See generally Hudnall, 800 F.2d at 386 (noting that, although

defendant likely did not qualify as incompetent, “in hindsight, it

may have been a better exercise of discretion, particularly in view

of [defendant’s] pro se appearance, to have appointed a guardian ad

litem out of an abundance of caution”); Westcott v. United States

Fid. & Guar. Co., 158 F.2d 20, 22 (4th Cir. 1946) (rejecting

challenge to district court’s refusal to appoint guardian ad litem

under Rule 17 for minor represented by counsel). Instead,

Plaintiff’s grandmother hired Plaintiff’s Counsel to represent

Plaintiff in this action. (See Docket Entry 56-2, ¶ 7.) Moreover,

the record reflects that Plaintiff’s grandmother, his lifelong

caretaker (see id., ¶ 2), remains involved in the prosecution of

Plaintiff’s case. (See, e.g., Docket Entry 29 at 1-2 (“Plaintiff’s

[C]ounsel has discussed th[e M]otion with both [Plaintiff] and his

caregiver, Julie Thompson ([Plaintiff’s] grandmother), and they

both consent . . . .”); Docket Entry 56-2, ¶ 9 (“[Thompson] ha[s]

been informed that [Plaintiff] needs a separate attorney to protect

his interests, and [Thompson] approve[s] the appointment of

Whitaker Rose to act in that capacity.”).)6

6 Notwithstanding Thompson’s averment that she “ha[s] been

informed that [Plaintiff] needs a separate attorney to protect his

interests” (Docket Entry 56-2, ¶ 9), individuals other than

(continued...)

17

In addition, although the Supplement asserts that “Thompson,

[Plaintiff’s] grandmother and caretaker, cannot properly serve as

guardian ad litem due to her limitations” (Docket Entry 56 at 5

(citing Docket Entry 56-2)), Thompson’s affidavit does not describe

any limitations that would prevent her from assisting Plaintiff

(whether designated as a guardian ad litem or not); to the

contrary, that affidavit indicates only that, due to poor eyesight,

Thompson cannot drive more than ten miles from her residence

(Docket Entry 56-2, FI 6), which prevents her from driving Plaintiff

to the office of Plaintiff’s Counsel (see id., F 10). The

affidavit discloses no other limitations (see generally id., 414 1-

12), and, in fact, affirmatively avers that Thompson suffers from

“no mental or physical disability” (id., 97 1). As such, the record

supports the conclusion that Plaintiff may call upon at least one

family member willing and able to aid him in prosecuting his claims

even absent formal designation as a guardian ad litem.

Under the circumstances, the Court finds that Plaintiff “is

adequately protected” without appointment of a guardian ad litem,

Michelson, 2018 WL 4474661, at *6. See Hudnall, 800 F.2d at 385

6(...continued)

attorneys can serve as guardians ad litem, see, e.g., Johnson, 2014

WL 3738310, at *6-7 (appointing litigant’s child as her guardian ad

litem); United States v. Ruger, Model 223 Mini Rifle, Serial No.

18492495, No. 1:09cv197, 2009 WL 2591145, at *3 (W.D.N.C. Aug. 19,

2009) (“Th[e guardian ad litem role] has, since common law, been

filled by qualified non-lawyers who otherwise have no interest in

the litigation.”).

18

(explaining that Rule 17 imposes only a duty either “to appoint a

guardian ad litem or to make available or take notice of the

existence of other adequate means of protection” (emphasis

added)).7 The Court will therefore deny the Motion, but without

prejudice to renewal of the request for appointment of a guardian

ad litem should Plaintiff’s situation evolve in a manner that

warrants such relief.

CONCLUSION

The record does not establish Plaintiff’s incompetency.

Further, the record shows that Plaintiff remains adequately

protected without appointment of a guardian ad litem at this time.

IT IS THEREFORE ORDERED that the Motion (Docket Entry 29) is

DENIED WITHOUT PREJUDICE to renewal of the request for appointment

of a guardian ad litem based on changed circumstances.

This 14th day of September, 2020.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

7 Given this determination, the Court declines the alternate

request by Plaintiff’s Counsel to stay the federal litigation

pending possible incompetency proceedings in state court.

19