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Gibson-Kennedy v. Slutsky

United States District Court, Third Circuit

January 27, 2014

ALVIANETTE GIBSON-KENNEDY on behalf of LILLIAN R. GIBSON, alleged incapacitated, Plaintiff,


Jeffrey L. Schmehl, J.

Pro se Plaintiff in this matter, Alvianette Gibson-Kennedy (“Gibson-Kennedy” or “Plaintiff”) purports to bring this action on behalf of her eighty-two (82) year old mother, Lillian R. Gibson (“Gibson”), for violations of the Fourth Amendment’s prohibition against unreasonable search and seizure. All Defendants have filed Motions to Dismiss. For reasons set forth below, I will grant the motions of all defendants and dismiss Plaintiff’s Amended Complaint with prejudice.


Plaintiff, Alvianette Gibson-Kennedy, claims that on January 25, 2013, Defendant Tivia Olsen, a representative of Montgomery County Aging and Adult Services (“MCAAS”) came to the home of Plaintiff’s mother, Lillian R. Gibson, in response to a complaint it had received suggesting that Gibson was mentally incapacitated and being financially exploited against her will. (Compl., ¶ 3C.) Specifically, Gibson-Kennedy alleges that a complaint was made to MCAAS that people were spending the proceeds of a reverse mortgage that Gibson had obtained on her home. (Compl., ¶ 3C.) Plaintiff further claims that as a result of the complaint received by MCAAS, Gibson was declared mentally incapacitated and was appointed a guardian (Defendant Kalpana Doshi) and an attorney (Defendant Diane Zabowski, Esq.). (Id.) Plaintiff alleges that Defendant Robert Slutsky, Esq. (an attorney who represented MCAAS in its petition for appointment of a guardian for Gibson), seized all of Gibson’s assets, personal property and finances and placed them under the control of the guardian, Ms. Doshi. (Id.) Defendants Slutsky, Olsen and Zabowski all filed motions to dismiss Plaintiff’s Complaint.

Thereafter, on October 23, 2013, Plaintiff filed an Amended Complaint, and for the first time, listed new parties as defendants, although the allegations contained in the Amended Complaint did not change. These new defendants were Jill Payne (Ms. Payne, an employee of MCAAS, was listed in the body of the original Complaint as a defendant, but not in the caption), First Niagara Bank, Navy Federal Credit Union and Anne R. White, CPA. An “addendum” to the Amended Complaint then lists Wells Fargo Bank, Citizens Bank and TD Bank as defendants, although they are not listed in the caption. A thorough review of Plaintiff’s Amended Complaint shows that it is difficult to determine exactly what claims Plaintiff has against First Niagara Bank, Navy Federal Credit Union, Anne R. White, CPA, Wells Fargo Bank, Citizens Bank or TD Bank. It appears the Gibson had a mortgage on her home with First Niagara Bank. (Am. Compl. ¶ 3(B).) Plaintiff seems to be alleging that in 2012, Gibson took out a reverse mortgage on her home to satisfy a second mortgage. (Id.) Plaintiff seems to be claiming issues with the originating bank (who is not identified in the Amended Complaint) repeatedly “chang[ing] hands” and transferring Gibson’s loan, losing her documentation and payment records in the process. (Am. Compl. ¶ 3(C).) Plaintiff also alleges that the proceeds of Gibson’s reverse mortgage were transferred into her account at the Navy Federal Credit Union. (Id.) However, no further allegations were set forth regarding any of these banking defendants and how they allegedly violated Mrs. Gibson’s constitutional rights. After the filing of Plaintiff’s Amended Complaint, Defendants Zabowski, Olsen, Payne, Slutsky, Doshi and First Niagara Bank all filed Motions to Dismiss.


The issues complained of by Plaintiff all stem from the actions of the Orphans’ Court of Montgomery County in adjudicating Gibson totally incapacitated. A review of the Motion to Dismiss Plaintiff’s Amended Complaint filed by Defendant Slutsky shows that a Final Decree was entered by the Honorable Stanley R. Ott on April 17, 2013. (Mtn to Dismiss of Slutsky, Ex. B.) This Final Decree found Gibson totally incapacitated and appointed a guardian of her person and estate, Defendant Doshi. (Id.) The Court concluded in this Final Decree that Gibson “suffers from dementia and various physical ailments, conditions or disabilities which totally impair her capacity to receive and evaluate information effectively and to make and communicate decisions regarding management of financial affairs or to meet essential requirement for her physical health and safety. (Id. at 1.) Doshi was granted the authority to decide where Gibson should live, how her meals, care, etc will be provided and to make medical decisions for Gibson. Judge Ott ordered that all financial institutions in possession of assets of Gibson should provide Doshi with immediate access to all Gibson’s assets. (Id. at 2.)

Plaintiff appealed Judge Ott’s Final Decree to the Pennsylvania Superior Court. As of the date of this opinion, the Superior Court appeal is still pending. In her appeal, Plaintiff raises 5 issues: 1) there was no proof of financial exploitation; 2) there was a patent disregard for the “well care” being provided by Gibson’s daughters; 3) there was a failure to recognize the power of attorney; 4) there was an “assignation of character” of Plaintiff Gibson-Kennedy relating to the issue of financial abuse; and 5) there were attempts made by Defendant Slutsky and Defendant Doshi to “defraud” Gibson of her home. (See Mtn to Dismiss of Slutsky, Ex. C.)


A Rule 12(b)(6) motion to dismiss requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In determining whether a complaint is sufficient, the court must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

This Court explained a motion filed pursuant to Rule 12(b)(1) in Gordon v. East Goshen Twp., 592 F.Supp.2d 828, 836-37 (E.D. Pa. 2009):

Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for “lack of jurisdiction over the subject matter....” Fed.R.Civ.P. 12(b)(1). In evaluating a Rule 12(b)(1) motion, the Court first must determine whether the motion attacks the complaint on its face or on its facts. Carpet Group Int'l v. Oriental Rug Imps. Ass'n, 227 F.3d 62, 69 (3d Cir.2000) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)). A facial challenge under Rule 12(b)(1) argues that the complaint fails to allege subject matter jurisdiction or contains defects in the jurisdictional allegations. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1350, at 147–54 (3d ed. 2004). As with a Rule 12(b)(6) motion, a court evaluating a facial challenge must accept the allegations in the complaint as true, and disposition of the motion becomes purely a legal question. Gould Elec., Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000). In reviewing a facial attack, a court may rely on documents referenced within the complaint and attached thereto but must view them in the light most favorable to the nonmoving party. See id. at 176 & n.6; Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993). On the other hand, in a factual attack, “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Mortensen, 549 F.2d at 891. In resolving a factual challenge under Rule 12(b)(1), “the court may consider and weigh evidence outside the pleadings to determine if it has jurisdiction.” Gould Elec., 220 F.3d at 178 (citing Mortensen, 549 F.2d at 891).

Gordon v. E. Goshen Twp., 592 F.Supp.2d 828, 836-37 (E.D. Pa. 2009). As the party asserting subject matter jurisdiction, the plaintiff has the burden of proving such jurisdiction exists. Gary v. Pennsylvania Human Relations Comm'n, No. 10-1844, 2012 WL 931082 (E.D. Pa. Mar. 20, 2012) aff'd, 497 F.App'x 223 (3d Cir. 2012), citing Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 191 n. 4 (3d Cir.2011); L ...

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