United States District Court, W.D. Pennsylvania
GABRIEL J. GAMBLE, et al., Plaintiffs,
DIRK MATS, Human Services Director, et al., Defendants.
Stewart Cercone, United States District Judge.
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.
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. (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.)
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 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.
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.
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.
Motion for Service
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).
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 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.”).
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 ...