“Where there is a showing of a substantial question of competency, the Judge with protective restrictions can, in making that determination, require a medical examination.”
How later courts described this case
- “Where there is a showing of a substantial question of competency, the Judge with protective restrictions can, in making that determination, require a medical examination.”
- “[A]ny federal court may raise subject matter jurisdiction sua sponte.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
HUNTER TYLER SCHRECK, §
by and through his mother Marcie Schreck, §
Plaintiff, :
§
§ 2:21-CV-220-Z-BR
CITY OF AMARILLO, ef ai.,
Defendants.
MEMORANDUM OPINION AND ORDER
DISMISSING COMPLAINT
The above-styled civil rights Complaint (ECF No. 3) comes before the Court through
Marcie Schreck, mother of Hunter Tyler Schreck, on application to proceed as “next friend” (ECF
Nos. 8, 10) on behalf of her adult son. The Court issued a Notice of Deficiency regarding the
request to proceed as “next friend.” See ECF No. 7. For the reasons discussed herein, Maric
Schreck’s application to proceed as “next friend” is DENIED, and the Complaint is DISMISSED
without prejudice for lack of subject matter jurisdiction. Lacking jurisdiction, the Court DENTES
the application to proceed in forma pauperis (ECF No. 5), as moot.
FACTUAL BACKGROUND
The Complaint centers around the alleged use of excessive force by several police officers
of the Amarillo Police Department—and additionally members of the community—against Hunter
Tyler Schreck (“Schreck”) stemming from an incident on June 24, 2020. See ECF No. 3 at 46-64.
Schreck was charged with two felony counts of assault on a peace officer in Randall County,
Texas, arising from this same encounter; these charges remain pending. /d. at 3, 67, The Complaint
alleges that members of the Jubilee Apostolic Church orchestrated the June 24, 2020, encounter
between the police and Schreck, and members of the church also defamed and harassed Schreck
before and after the incident. /d. at 34-44. Schreck also brings claims for due process violations
occurring in his criminal proceedings, denial of access to medical care, and for claims under the
Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”). See id.
The Complaint alleges that Schreck suffers from Autism Spectrum Disorder, Traumatic
Brain Injury (resulting from the June 24, 2020 police encounter), possibly schizophrenia and
hallucinations, an unspecified heart condition, and possibly other maladies. /d. at 32-34. Despite
these allegations, Schreck and his mother Marcie Schreck fought a declaration of “incompetence”
in his criminal proceedings and provide no medical documentation reflecting that he has ever been
deemed incompetent by a court of law. /d. at 78-81, ECF No. 8 at 3-4, 6 (“at times, Hunter Tyler
Schreck is inaccessible and inapproachable...”; “Hunter Tyler Schreck has mental illness. He is
not crazy. He is not ‘insane,’ but he can no longer function on his own. He can’t protect himself
in this matter, and he can no longer manage his affairs. He is 27-yars-old, lives with his parents,
and relies on MOMMA SCHRECK for just about everything. Only about 17 percent of young
adults on the spectrum have ever lived independently.”). In fact, no medical records were
submitted regarding Schreck’s medical or mental health conditions, and Schreck did not cooperate
in the mental health evaluation scheduled for his criminal case. See ECF No. 8 at 7 (Hunter Tyler
Schreck had a Competency Evaluation by Dr. Gina L. Matteson. Her report allegedly says she was
unable to make a determination because Hunter Tyler Schreck answered each of her questions the
same way: “Hunter Tyler Schreck. I plead the Fifth.”).
LEGAL STANDARD
As a preliminary matter in all cases, the Court must examine the threshold question of its
subject matter jurisdiction. See McDonal y. Abbott Labs, 408 F.3d 177, 182 n.5 (Sth Cir. 2005)
(“[A]ny federal court may raise subject matter jurisdiction sua sponte.”) (citing Kuhgras AG vy.
Marathon Oil Co., 526 U.S. 574, 583 (1999)); FED. R. CIV. P. 12(h)(3) (“Tf the court determines
at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”’).
The Supreme Court has held that “[t]he burden is on the ‘next friend’ clearly to establish
the propriety of [her] status and thereby justify the jurisdiction of the court.” Whitmore v. Arkansas,
495 U.S. 149, 164 (1990). In Whitmore, the Court gave two requirements for those seeking “next
friend” status: (1) “a ‘next friend’ must provide an adequate explanation—such as inaccessibility,
mental incompetence, or other disability—why the real party in interest cannot appear on his own
behalf to prosecute the action”; and (2) “the ‘next friend’ must be truly dedicated to the best
interests of the person on whose behalf he seeks to litigate.” /d. at 163.
Rule 17(c) of the Federal Rules of Civil Procedure governs a minor or incompetent’s access
to federal court. It directs that a minor or incompetent may sue in federal court through a duly
appointed representative which includes a general guardian, committee, conservator, or like
fiduciary. FED. R. Crv. P. 17(c)(1). If a minor lacks a general guardian or a duly appointed
representative, Rule 17(c)(2) directs the court either appoint a legal guardian or “next friend,” or
issue an order to protect a minor or incompetent who is unrepresented in the federal suit. FED. R.
Crv. P; 17(¢)(2).
ANALYSIS
Courts in this circuit have uniformly denied next friend status to friends and family
members whenever the prospective next friends have failed to produce evidence clearly
demonstrating incompetence. Cf Fulhvood yv. Rivera, No. 1:12-CV-187, 2012 WL 1553906 at *1
(E.D. Tex. May 1, 2012) (denying next friend status to a friend of a prisoner because there was no
indication that the prisoner could not prosecute his claims himself); and Afyran v. Clark, No. 1:11-
CV-677, 2011 WL 7110227 at *1 (E.D. Tex. Dec. 9, 2011) (same, but prospective next friend was
the spouse of the prisoner); and Ramirez v. Delcore, No. C:07-CV-48, 2007 WL 508940 at *1
(S.D. Tex. Feb. 13, 2007) (same, but prospective next friend was the prisoner’s parent, and the
prisoner was alleged, without corroboration, to be “mentally incompetent” and to have an
insufficient grasp of the English language); and Ab/les v. Dretke, No. 4:05-CV-372, 2005 WL
3148439 at *2 (N.D. Tex. 2005) (same, but the prisoner had “‘a history of psychological problems”
though they were not sufficiently serious to render him incompetent); and Donalson ex rel.
Donatson v. Eason, 1:2-CV-220, 2003 WL 21281656 at *2 (N.D. Tex. May 29, 2003) (same, but
prisoner was alleged, without corroboration, to be “probably incompetent” and had purported to
give his mother the “power of attorney”); with Ables v. Quarteman, No. 4:07-CV-413, 2008 WL
2815574 at *1 n.1 (N.D. Tex. July 15, 2008) (granting next friend status to the parents of an
incarcerated minor). As these authorities demonstrate, where, as here, a prospective next friend
does not even specifically allege that the real party in interest is incompetent (rather Marcie
Schreck makes references to “inaccessibility” and mental health and physical health challenges
but does not provide any supporting documentation or indicate Schreck’s willingness to submit to
psychological evaluation), the prospective next friend has clearly failed to meet her burden under
Whitmore. See Rubio y. United States, No. 11-CR-48-RAJ, 2015 WL 13385924, at *4 (W.D. Tex.
Jan. 30, 2015), report and recommendation adopted, No. MO11CRO00481RAJ, 2015 WL
13387867 (W.D. Tex. Mar. 27, 2015), and report and recommendation adopted sub nom, United
States v. Barrandey, No. MO11CRO00482RAJ, 2015 WL 13387868 (W.D. Tex. May 6, 2015).
A power of attorney, absent proof of incompetency, cannot qualify a person to bring suit
as a next friend. See Weber v. Garza, 570 F.2d 511, 514 (Sth Cir.1978) (finding, in a habeas case,
that “powers of attorney ... cannot alone transform [the attorney in fact] into a next friend”).
Incompetency cannot be presumed from the designation of Schreck’s mother as his attorney-in-
fact. The burden is upon the party claiming next friend status to establish the propriety of this
status and thus the Court’s jurisdiction. Whitmore, 495 U.S. at 164 (citation omitted). Absent that
proof, the purported next friend lacks standing, and the Court lacks jurisdiction. /d. at 166.
Rule 17(c) 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.” Obviously if there has
been a legal adjudication of incompetence and that is brought to a court’s attention, the Rule’s
provision is brought in play. See Zaro v. Strauss, 167 F.2d 218 (Sth Cir. 1948). No such prior
adjudication is alleged here. See ECF Nos. 3, 8, and 10. Further, it is fairly well established that
“lw]hen the competency of a party is raised, a court may require that party to submit to a
psychiatric examination, so that the court may have medical facts on which its decision on the
necessity of appointing a guardian ad litem can be based.” Cyntje v. Gov't of Virgin Islands, 95
F.R.D. 430, 432 (D. Vi. 1982); see also Bodnar y. Bodnar, 441 F.2d 1103, 1104 (Sth Cir. 1971)
(“Where there is a showing of a substantial question of competency, the Judge with protective
restrictions can, in making that determination, require a medical examination.”). Here, Schreck
previously failed to comply with a medical examination in a criminal case regarding
incompetency, both he and Marcie Schreck allege to have challenged any request to determine
Schreck’s incompetency, and no indication is made by her current motion that such an
incompetency determination is even requested. Rule 17(c) specifically exists to protect minors and
incompetent individuals.' Despite Marcie Schreck’s allegations that “at times” Schreck is
“inaccessible and unapproachable” and her claims and statements regarding his mental health
challenges, she has not provided sufficient information to show that Schreck is unable to proceed
on his own behalf.
Further, it is quite clear that Marcie Schreck intends to “represent” her son in this matter.
Her most recent filing (ECF No. 10) makes clear she fails to understand that a power-of-attorney
does nof present an individual with the right to represent someone as “next friend” in a pro se
capacity and to act as an actual attorney. Although some circumstances may warrant filing on
another’s behalf as a “next friend,” “individuals not licensed to practice law by the state may not
use the ‘next friend’ device as an artifice for the unauthorized practice of law.” Weber v. Garza,
570 F.2d 511, 514 (Sth Cir. 1978). An “attorney-in-fact” designation is no/ a license to practice
law, and even if “next friend” status were to be granted, the Court would then proceed to appoint
counsel that would represent her son’s interests. However, as Marcie Schreck has presented the
Court with insufficient information and documentation to meet her burden of establishing “next
friend” status, the Court DENIES her application to proceed as “next friend” and must DISMISS
the Complaint for lack of subject matter jurisdiction.
' Marcie Schreck argues that her son is not “insane.” This Court is not affixing such a label by determining his
competence; rather, the allegations of Schreck’s “disability” must be shown to affect his ability to litigate this case on
his own. The sole piece of medical documentation submitted to support such claims is Plaintiff's Exhibit 100 —a
report on the “traumatic brain injury” of Schreck. See ECF No. 3 (Exhibit 100 of Attached Exhibits). This document
does not provide a medical analysis from a licensed medical doctor of how Schreck’s “traumatic brain injury” affects
his cognitive function or impairs his understanding. Thus, this document is insufficient to support the statements made
by Marcie Schreck concerning cognition and her son’s abilities.
CONCLUSION
Marcie Schreck’s application to proceed as “next friend” of Hunter Tyler Schreck is
DENIED. The Court ORDERS that the Complaint (ECF No. 3) filed by Marcie Schreck on behalf
of her adult son, Hunter Tyler Schreck, be DISMISSED without prejudice for lack of subject
matter jurisdiction.
SO ORDERED.
November A 2021.
UNIZED STATES DISTRICT JUDGE