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Gamble v. Mats

United States District Court, W.D. Pennsylvania

August 22, 2017

GABRIEL J. GAMBLE, et al., Plaintiffs,
v.
DIRK MATS, Human Services Director, et al., Defendants.

          MEMORANDUM OPINION

          David Stewart Cercone, United States District Judge.

         Pending before the court in the above-captioned matter are a motion for service of the Amended Complaint (Doc. No. 12) and a motion for a hearing and appointment of counsel (Doc. No. 15) filed by plaintiff Cynthia A. Gamble. For the reasons that follow, these motions will be denied.

         I. INTRODUCTION

         This case was commenced on February 24, 2016, in the United States District Court for the Middle District of Pennsylvania by the filing of a complaint naming Gabriel J. Gamble (hereafter, “Gabriel”) as the sole plaintiff and “The Department of Human Services, ” “Exella Health Hospital, ” and Torrance State Hospital as defendants.[1] (Doc. No. 1.) Gabriel was the only plaintiff identified in the complaint, but his signature on that pleading was entered by his mother, Cynthia A. Gamble (hereafter, “Cynthia”), acting as “rep-payee P.O.A.” (Id. at p. 6, ¶ V(A).) By order dated March 16, 2016, the Honorable Yvette Kane granted Gabriel's application to proceed in forma pauperis and transferred the case to this judicial district pursuant to 28 U.S.C. §1404(a). (Doc. No. 7.)

         On October 27, 2016, an Amended Complaint (Doc. No. 6) was filed, designating Gabriel, Cynthia, and “Kathy Vanwhy” as plaintiffs. The Amended Complaint, which serves as the operative pleading in this case, designated a host of new defendants including “Human Services Director, Dirk Mats, ” “Excella Inpatient Mental Health, ” Torrance State Hospital, and some thirty other individuals. The Amended Complaint once again is signed by Cynthia on Gabriel's behalf as “rep-payee P.O.A.” as well as in her own right. This pleading alleges, in part, that:

After being admitted to Exella [sic] Hospital Gabriel was given a DMPS test[2] which caused an [sic] concussion and he needed to go on thyroid medicine which he didn't get right away and he begged for more food because this made him hungry all the time. This also caused an eye injury and from never receiving the proper eye glasses he is now nearsighted, crosseyed and has grayish blue eyes from being very toxic. They changed his meds every month for five years and denied him a gluten and diary [sic] free diet.

         Amended Compl. at p. 11, ¶ III. It is alleged that the various named defendants covered up the foregoing misconduct and engaged in “abuse and neglect” of Gabriel.

         I. DISCUSSION

         Cynthia now moves this court for service of the Amended Complaint on the thirty-three (33) named defendants. She also requests a hearing on the claims and seeks appointment of counsel.

         A. Motion for Service

         The United States Court of Appeals for the Third Circuit has instructed the district courts to utilize a two-step analysis to determine whether to direct service of a complaint where the plaintiff seeks to proceed in forma pauperis. First, the court must determine whether the litigant is indigent within the meaning of 28 U.S.C. § 1915(a). Second, the court must determine whether the complaint is frivolous or malicious or otherwise fails to state a cognizable claim for relief. Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990); see 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).

         In this case, Judge Kane granted Gabriel's in forma pauperis application prior to transferring the case to this court. However, Cynthia and “Kathy Vanwhy” - the newly added plaintiffs - have never applied for or been granted in forma pauperis status, nor have they paid the necessary filing fee for purposes of proceeding with this case. For this reason alone, the claims of Cynthia and Kathy Vanwhy are not properly before the court[3] and Cynthia's various motions must therefore be denied. See Baxter v. Atl. Care Main Pomona Hosp., No. CIV. 13-7876 RBK JS, 2015 WL 715012, at *2 (D.N.J. Feb. 19, 2015) (finding, in dicta, that additional grounds existed to deny reopening of case where plaintiff had “never sought nor received in forma pauperis status ... so as to permit the case to proceed for him under this specific civil action number”); Edmonds v. Carteret Police Dept., No. 10-2304, 2010 WL 4929279, at *2 (D.N.J. Nov.30, 2010) (“Where multiple plaintiffs seek to proceed in forma pauperis ... all plaintiffs must establish their inability to pay the filing fee.”).

         To the extent Cynthia is moving for service of the Amended Complaint on Gabriel's behalf, she has no authority to do so. “It is well-settled that ‘non-attorneys cannot litigate the rights of others.'” Owens v. Credit Suisse Sec. (USA) LLC, No. CV 15-1485, 2015 WL 6175441, at *2 (D.N.J. Oct. 20, 2015) (quoting Baxter v. Atlantic Care Main Pomona Hosp., No. 13-7876, 2015 WL 715012, at *2 (D.N.J. Feb. 19, 2015)). This prohibition applies notwithstanding the fact that Cynthia is Gabriel's mother and is allegedly acting under a power-of- attorney. See Williams v. United States, 477 F.App'x. 9, 11 (3d Cir. 2012) (citations omitted) (“Faison Williams's power of attorney for her father may confer certain decision-making authority under state law, but it does not permit her to represent him pro se in federal court.”); Hoover v. Wells Fargo Bank,, Civ. A. No. 14-139, Doc. No. 2 (W.D. Pa. Jan. 30, 2014) (quoting same); see also Osei-Afriyie ex rel ...


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