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Woods v. Legend Oaks Healthcare & Rehabilitation

United States District Court, W.D. Texas, San Antonio Division

May 29, 2019

MARJORIE EZETTE WOODS, Plaintiff,
v.
LEGEND OAKS HEALTHCARE & REHABILITATION, AUTUMN WINDS LIVING & REHABILITATION, ADULT PROTECTIVE SERVICES, Defendants.

          ORDER

          ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE.

         Before the Court in the above-styled cause of action are Plaintiff's pro se Application to Proceed in District Court without Prepaying Fees or Costs and proposed civil complaint, filed May 14, 2019 [#1], Plaintiff's pro se Motion for Appointment of Counsel [#2], and Plaintiff's pro se Motion for Speedy Trial [#3]. This case was automatically referred to the undersigned upon filing, and the undersigned has authority to enter this order pursuant to 28 U.S.C. § 636(b)(1)(A). By her motions, Plaintiff seeks leave to proceed in forma pauperis (“IFP”) based on her inability to afford court fees and costs, requests the appointment of an attorney to represent her in this case, and asks the Court to proceed with this case in a timely fashion. Having considered the motions and documentation provided by Plaintiff, the Court will grant the motion to proceed IFP, deny the motion to appoint counsel, dismiss the motion for speedy trial, [1]and order Plaintiff to file a more definite statement regarding her allegations in this case.

         I. Motion to Proceed IFP

         All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for a writ of habeas corpus, must pay a filing fee of $350, as well as an administrative fee.[2] See 28 U.S.C. § 1914(a). Plaintiff's motion to proceed IFP includes her income and asset information, which indicates that Plaintiff is unemployed, has no significant assets, and is behind on her credit card and truck payments. Plaintiff has no dependents but used to live with her mother and relied on her mother's Social Security payments for basic support income. The information demonstrates that Plaintiff does not have sufficient monthly resources available to pay the filing fee, and the Court will grant the motion to proceed IFP.

         II. Appointment of Counsel

         Courts may appoint counsel pursuant to 28 U.S.C. § 1915(e)(1) in IFP proceedings. Under § 1915(e)(1), the Court has discretion to appoint an attorney to represent a litigant in federal court, but there is no right to the automatic appointment of counsel in a civil case. Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987). Appointment of counsel in a civil case is considered a privilege, not a constitutional right, and should be allowed only in exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982) (citation omitted); see Cupit, 835 F.2d at 86. In evaluating whether the appointment of counsel is proper under § 1915(e), the district court considers the type and complexity of the case, the litigant's ability to investigate and present the case, and the level of skill required to present the evidence. See Castro Romero v. Becken, 256 F.3d 349, 354 (5th Cir. 2001).

         Plaintiff has not demonstrated that exceptional circumstances are present in his case or that, based on the record, appointment of counsel is appropriate under the applicable legal standard under 28 U.S.C. § 1915(e). The record reflects that Plaintiff has a college degree and a masters in teaching and taught in various educational venues before she began to care for her ailing mother. Plaintiff is well educated and able to communicate with the Court.

         As to the merits of Plaintiff's case, Plaintiff's proposed complaint [#1-1, #1-2] and other filings [#1-3] refer to claims under the Americans with Disabilities Act, the Medicare Act, False Claims Act, as well as kidnapping, slander, and defamation. Based on Plaintiff's current allegations, the Court is not clear whether Plaintiff has stated any cause of action over which this federal court has jurisdiction or has stated a plausible claim upon which relief could be granted. Accordingly, the Court will order Plaintiff to file a more definite statement responding to the specific questions outlined below. The Court will deny Plaintiff's request for counsel at this time.

         III. More Definite Statement

         Pursuant to 28 U.S.C. § 1915(e), the Court is empowered to screen any civil complaint filed by a party proceeding IFP to determine whether the claims presented are (1) frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a defendant who is immune from such relief.[3] See 28 U.S.C. § 1915(e)(2)(B). Plaintiff's Complaint names Legend Oaks Healthcare & Rehabilitation (“Legend Oaks”), Autumn Winds Living & Rehabilitation (“Autumn Winds”), and Adult Protective Services, New Braunfels (“APS”) as Defendants in this action. Plaintiff's Complaint alleges that she is the durable and medical power of attorney for her mother, who recently suffered a stroke that led to her severe physical and mental impairment. Plaintiff contends that she placed her mother in a nursing and rehabilitation facility-Defendant Legend Oaks-on December 28, 2018 when she realized she could no longer care for her mother in her compromised condition. There were issues with her mother's benefits and payment to Legend Oaks, and Plaintiff contends that sometime in January 2019 Plaintiff's sister removed Plaintiff's mother from Legend Oaks and placed her in another facility-Defendant Autumn Winds-without Plaintiff's authorization. Plaintiff alleges that Legend Oaks and Autumn Winds were complicit in the transfer. Since Plaintiff's mother was moved to Autumn Winds, Plaintiff contends she has been unable to get any information on her mother's condition or communicate with her, despite Plaintiff's attempts to prove her legal status as power of attorney.

         Plaintiff alleges that on April 19, 2019 she attempted to reach her mother by physically visiting Autumn Winds with two police officers and a friend of her mother's as support. Autumn Winds allegedly questioned the authenticity of the power of attorney documents Plaintiffs showed the facility, and Plaintiff was again unsuccessful at seeing her mother. On this day, Plaintiff also discovered from the officers that she is currently under investigation by Defendant APS for “exploitation” and using her mother's funds for her benefit. Plaintiff believes that Legend Oaks and Autumn Winds are holding her mother against her will in an attempt to obtain her mother's Social Security payments. Plaintiff seeks monetary compensation in the amount of two million dollars. Plaintiff attaches to her proposed Complaint notarized Durable Power of Attorney and Medical Power of Attorney documents signed by her mother and dated June 17, 2015 designating Plaintiff as her attorney-in-fact and health care agent.

         The Court is unclear if Plaintiff has alleged any cause of action against Defendants that would confer subject matter jurisdiction on this Court. This is a federal court. Federal courts are courts of limited jurisdiction, which means that they can only hear certain types of cases: cases that present a federal question (meaning cases involving the violation of a federal law or the United States Constitution) or cases between citizens of different states. Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006); Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). State courts, in contrast, have general jurisdiction over a wide range of cases. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000).

         Plaintiff asserts claims under the Americans with Disabilities Act, Medicare Act, False Claims Act, as well as kidnapping, slander, and defamation. The Court will briefly discuss each of the causes of action identified in Plaintiff's Complaint and identify the deficiencies that Plaintiff should address in her more definite statement if she desires to proceed with her lawsuit in this Court.

         A. Americans with ...


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