Opinion
14-CV-7160 (PKC) (LB)
02-10-2015
VANESSA RIVERA, Plaintiff, v. THE STATE OF NEW YORK; THE CITY OF NEW YORK; NYC HEALTH AND HOSPITALS CORPORATION; DANIEL M. DONOVAN, JR., IN HIS OFFICIAL CAPACITY AS RICHMOND COUNTY DISTRICT ATTORNEY, BAYLEY SETON HOSPITAL; NEW YORK LAWYERS FOR THE PUBLIC INTEREST, INC.; and BATTISTE, ARONOWSKI, AND SUCHOW, INC. Defendants.
NOT FOR PUBLICATION MEMORANDUM AND ORDER PAMELA K. CHEN, United States District Judge:
On December 4, 2014, Jesus Berrios, the purported uncle of plaintiff Vanessa Rivera, filed this action alleging that defendants violated State and federal laws in the care, assessment, treatment and prosecution of Ms. Rivera. Plaintiff seeks declaratory and injunctive relief as well as damages. Plaintiff also requests pro bono counsel. Mr. Berrios, who is not an attorney, seeks to be appointed the guardian ad litem of Ms. Rivera. The Court grants plaintiff's request to proceed in forma pauperis solely for the purpose of this Order. For the reasons set forth below, Mr. Berrios's application to be appointed Ms. Rivera's guardian ad litem and request for pro bono counsel are denied. The Court also directs Ms. Rivera to file an Amended Complaint within thirty (30) days of the date of this Order to affirm that she wishes to proceed in this action in her own right. If Ms. Rivera fails to file an Amended Complaint within thirty (30) days, this case will be dismissed for failure to prosecute.
Background
This complaint is a duplicate of the one filed by Mr. Berrios in Berrios v. The State of New York, et al., No. 10-CV-2897 (E.D.N.Y. Feb. 17, 2011), appeal dismissed, Mandate, No. 11-1020 (2d Cir. June 17, 2011). There, the Honorable Raymond Dearie denied Mr. Berrios's application to be appointed Ms. Rivera's guardian ad litem and for pro bono counsel. Berrios, No. 10-CV-2897 (E.D.N.Y. Feb. 17, 2011). Judge Dearie did not consider the merits of Ms. Rivera's claims, because "the Court may not consider . . . any claims that Ms. Rivera, an alleged incompetent person, may have." Id. at 2.
Mr. Berrios is no stranger to this Court or the State courts. See In the Matter of Vanessa R., 59 A.D.3d 726, 873 N.Y.S.2d 491 (2d Dep't 2009), leave to appeal dismissed, 12 N.Y.3d 872, 882 N.Y.S.2d 680 (2009); Berrios v. Apfel, No. 00-CV-4278 (E.D.N.Y. Aug. 24, 2001); Abreu, Luisa et al. v. State of New York, et al., No. 02-CV-1618 (E.D.N.Y. Mar. 21, 2002), appeal dismissed, Mandate, No. 02-7448 (2d Cir. Oct. 11, 2002); Berrios v. New York City Housing Authority, 564 F.3d 130 (2d Cir. 2009).
The only difference now is that Mr. Berrios does not appear in the caption of this complaint as Ms. Rivera's guardian; instead, this action is purportedly filed and signed by Ms. Rivera. The allegations, however, are identical to those brought in Berrios, No. 10-CV-2897. And despite the amended caption and Ms. Rivera's signature, the complaint makes references to "Plaintiff Jesus Berrios" as the party bringing the action. See Compl. at 2, ¶ 4.
This is Mr. Berrios's third attempt to file on behalf of Ms. Rivera in federal court. His past two attempts have all been unsuccessful. See Berrios v. The State of New York, et al., No. 09-CV-2236 (E.D.N.Y. July 27, 2009) (denying Berrios's and his nephew Christopher Rivera's requests for pro bono counsel and to be appointed Ms. Rivera's representatives without considering the merits of Ms. Rivera's claims), appeal dismissed, Mandate, No. 09-3779 (2d Cir. Jan. 27, 2010); Berrios v. The State of New York, et al., No. 10-CV-2897 (E.D.N.Y. Feb. 14, 2011) (denying Berrios's applications for pro bono counsel and to be appointed Ms. Rivera's guardian ad litem without considering Ms. Rivera's claims), appeal dismissed, Mandate, No. 11-1020 (2d Cir. June 17, 2011). It is unclear why Mr. Berrios now attempts to bring this action again. There are no new allegations since the complaint was filed in Docket No. 10-CV-2897; the complaint here is, in fact, identical to that submission.
The Court reiterates that when the owner of a claim is a minor or incompetent person, unless that claimant is properly represented by a guardian ad litem or other suitable fiduciary, and that representative either is, or is represented by an attorney, the district court should not issue a ruling as to whether the complaint states a claim on which relief may be granted. Berrios v. New York City Housing Authority, 564 F.3d 130, 134 (2d Cir. 2009).
Here, Mr. Berrios alleges that Ms. Rivera is incompetent, but the instant record does not support his claim. An unmarked exhibit included in the submission states that Ms. Rivera "has a mild level of intellectual disability." See Compl., Unmarked Exhibit, Social Service Annual Summary dated May 16, 2013. Moreover, the State court has previously denied Mr. Berrios's request to be appointed Ms. Rivera's guardian ad litem. See In the Matter of Vanessa R., 59 A.D.3d 726, 873 N.Y.S.2d 491 (2d Dep't 2009), leave to appeal dismissed, 12 N.Y.3d 872, 882 N.Y.S.2d 680 (2009).
Conclusion
Accordingly, the Court does not consider and offers no opinion on any claims that Ms. Rivera may have. Mr. Berrios's application to be appointed Ms. Rivera's guardian ad litem is denied. Likewise, the request for pro bono counsel is denied without prejudice.
Based on the appearance of Ms. Rivera's name in the complaint caption, the Court directs Ms. Rivera to file an Amended Complaint within thirty (30) days of the date of this Order.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: Brooklyn, New York
February 10, 2015