United States District Court, E.D. North Carolina, Western Division
RAYMOND TARLTON, as guardian ad litem for HENRY LEE MCCOLLUM and J. DUANE GILLIAM, as guardian of the estate of LEON BROWN, Plaintiffs,
TOWN OF RED SPRINGS, Defendants.
TERRENCE W. BOYLE, DISTRICT JUDGE.
cause comes before the Court on a motion by the guardian ad
litem for plaintiff McCollum to determine whether the
representation agreement is valid and whether a conflict
exists as well as a motion by counsel for plaintiffs to
terminate the guardian ad litem appointed to represent the
interests of plaintiff Henry Lee McCollum in this matter.
relevant to the instant motion, the procedural background
begins with a hearing held before the undersigned on May 5,
2017, wherein the issue of plaintiff Henry McCollum's
competence to proceed for himself was raised. The case had
been called for hearing for the Court to consider whether to
approve a settlement agreement between plaintiffs and
defendants associated with the Town of Red Springs (Town of
Red Springs defendants); such hearing was necessary as
plaintiff Leon Brown, who was found after a hearing before
the Clerk of Cumberland County Superior Court to be
incompetent, has proceeded in this matter since March 14,
2017, through a guardian, now the guardian of his estate, J.
Duane Gilliam. The motion to approve the settlement filed by
counsel for McCollum and Brown raised the issue of
McCollum's competence to proceed in this matter. In the
motion, plaintiffs contended that McCollum, although having
previously tested as having a low intelligence quotient, had
not been determined to be incompetent by any court and that
Thomas J. Harbin, Ph.D., had evaluated McCollum for
competence and had found McCollum competent to enter into the
settlement with the Town of Red Springs defendants.
the hearing, the Court denied without prejudice the motion to
approve settlement and appointed a guardian ad litem to
protect McCollum's interests, noting its concern
regarding McCollum's competency and the mandate of Rule
17(c) that a court must appoint a guardian ad litem
to protect a minor or incompetent person. [DE 204]. The Court
appointed attorney Raymond Tarlton to serve as guardian ad
litem for McCollum. Approximately eleven weeks later, prior
to a hearing in this matter which had been scheduled on the
pending summary judgment motions, Tarlton filed a motion
requesting that the Court determine whether the
representation agreement between McCollum and his counsel is
valid and whether a conflict exists. Counsel for McCollum
responded, as did the Town of Red Springs defendants, who did
not take a position on the guardian's motion but
responded to state their position that the settlement as
negotiated is fair.
August 10, 2017, a hearing was again held before the
undersigned. The Court heard testimony from McCollum, Dr.
Thomas Harbin, and Ken Rose, an attorney who previously
represented McCollum. The following day, the Court ordered
McCollum's guardian ad litem to submit a proposed expert
to evaluate McCollum for competence to proceed for himself in
this matter. Tarlton proffered George Patrick Corvin, M.D., a
forensic psychiatrist. Counsel for plaintiffs and the Town of
Red Springs had previously proffered experts to render an
opinion as to McCollum's competence. After review of
the experts submitted by the parties, the Court appointed Dr.
Corvin to conduct an evaluation of McCollum and to offer an
opinion regarding whether McCollum has the practical ability
to manage his own affairs. Counsel for plaintiffs on August
15, 2017, filed a motion to terminate McCollum's guardian
ad litem and to dispense with further competency testing.
September 12, 2017, Dr. Corvin filed his report and on
September 14, 2017, counsel for plaintiffs filed objections
to Dr. Corvin's report. It is in this posture that the
case comes before the undersigned. The Court considers first
whether, based on the evidence presented, the testimony
received, and the evaluations submitted by the experts,
McCollum is competent to proceed for himself in this matter.
Second, the Court considers whether the representation
agreement entered into by McCollum and counsel is invalid.
Competency determination and motion to exclude guardian ad
Applicable legal standards
17(c) of the Federal Rules of Civil Procedure provides that a
district court shall appoint a guardian ad litem for an
incompetent person not otherwise represented or shall order
otherwise for the protection of the incompetent person.
A guardian ad litem is appointed as a representative of the
court to act for the [incompetent party] in the cause, with
authority to engage counsel, file suit and to prosecute,
control and direct the litigation. As an officer of the court
the guardian ad litem has full responsibility to assist the
court 'to secure the just, speedy and inexpensive
determination' of the action.
Fong Sik Leung v. Dulles, 226 F.2d 74, 82 (9th Cir.
1955); see also Genesco, Inc. v. Cone Mills
Corp., 604 F.2d 281, 285 (4th Cir. 1979) (under
North Carolina law, guardian ad litem is the court's
officer appointed for the purpose of taking care of the
infant's rights). A court may consider the
appropriateness of appointment of a guardian ad litem sua
sponte, Ferrelli v. River Manor Health Care Or., 323
F.3d 196, 203 (2d Cir. 2003), and the fact that a party
determined to be incompetent is represented by counsel does
not prevent the appointment of a guardian ad litem. See
Noe v. True, 507 F.2d 9, 12 (6th Cir. 1974) (duties of
guardian ad litem and counsel are different); Zaro v.
Strauss, 167 F.2d 218, 220 (5th Cir. 1948)
(representation by counsel is insufficient for determination
that an incompetent or minor party is otherwise represented
for purposes of Rule 17(c)); but see SUSAN BUTLER,
Plaintiff, v. NORMAN ROSS, Defendant., No. 16CV1282
(DLC), 2017 WL 4417700, at *8 n.5 (S.D.N.Y. Oct. 3, 2017)
(noting that Second Circuit had not followed Fifth and Sixth
Circuits on this question). Moreover, "nothing in the
rule prohibits the district court from appointing a guardian
ad litem to represent a person not previously adjudicated as
incompetent through a state proceeding." Fonner v.
Fairfax Cty., VA, 415 F.3d 325, 330 (4th Cir. 2005).
Rule 17(c) is silent as to what law should apply in
determining whether a party is incompetent, the requirement
in Rule 17(b) that the court apply the law of the
individual's domicile has been held to apply to
determinations under Rule 17(c). See, e.g., Thomas v.
Humfield, 916 F.2d 1032, 1035 (5th Cir. 1990); Wolfe
by Hedges v. Bias, 601 F.Supp. 426, 427-28 (S.D. W.Va.
1984). However, "insofar as state law might be read to
preclude the federal court from exercising its appointive
power under Rule 17(c), it must give way, Rule 17(b)
notwithstanding, " Neilson v. Colgate-Palmolive
Co., 199 F.3d 642, 656 (2d Cir. 1999) (quoting 6A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 1571, at 511
(2d ed.1990)). A federal court need not use the state's
procedures for determining competency, so long as its
procedures comport with due process. Thomas, 916
F.2d at 1035. The Due Process Clause of the Fifth Amendment
limits the court's discretion with respect to the
procedures used in determining whether to appoint a guardian
ad litem because litigants "possess liberty interests
in avoiding the stigma of being found incompetent and in
retaining personal control over the litigation."
Neilson, 199 F.3d at 651 (citing Wisconsin v.
Constantineau, 400 U.S. 433, 437 (1971)).
requires physical presence, coupled with an intent to make
the State a home." Johnson v. Advance Am., 549
F.3d 932, 937 n.2 (4th Cir. 2008). The record reflects that
McCollum is originally from and prior to his incarceration
resided in New Jersey, that he currently resides in Virginia,
and that he resided in North Carolina during his thirty-one
years of incarceration and for approximately two years
following his release. Although the record is limited on this
issue, the Court will presume for the purposes of its
determination that at the time this suit was filed in 2015
McCollum was domiciled in North Carolina where he was living
at the time. See Kollsman, a Div. of Sequa
Corp. v. Cohen, 996 F.2d 702, 705 (4th Cir. 1993)
(proper domicile for purposes of Rule 17(c) determination was
domicile at time of service of process). Under North Carolina
law, an incompetent adult is defined as
an adult or emancipated minor who lacks sufficient capacity
to manage the adult's own affairs or to make or
communicate important decisions concerning the adult's
person, family, or property whether the lack of capacity is
due to mental illness, mental retardation, epilepsy, cerebral