BRIEF IN SUPPORT OF MOTION TO DISMISS GUARDIANSHIP OF MOTHER WWBRIEF IN SUPPORT OF MOTION TO DISMISS GUARDIANSHIP OF MOTHER WW
Daughter, SS, interested person and daughter of Mother WW, submits this brief together with a sworn affidavit and legal authorities demonstrating that the county has egregiously violated Mother’s rights and restoration is mandated. Daughter’s right to be free from retaliation for advocating for the rights of her mother—were violated too. Even if the Court could retroactively determine by appropriate medical expert testimony that she was “incapacitated,” the court would onlybe able to rely on a temporary condition that no longer exists—at best. See Affidavit of Daughter, attached hereto, attesting to the fact that her mother does not suffer from drug addiction or any observable impairment substantially limiting any activity of daily living and lack of medical evidence suggesting otherwise. See attached Introduction to Guardianship and Conservatorship in Michigan, attached hereto and incorporated by reference. Mother and Daughter join together seeking termination and restoration in this matter as justice requires under state and federal laws, including but not limited to the Civil Rights Act of 1964, 42 U.S.C. 1984, 14 th Amendment to the U.S. Constitution, Americans with Disabilities Act of 1990 and Amendments of 2008 and 2016, Michigan Rules of Procedure and Evidence and other legal authorities cited herein. The ward’s rights will continue to be violated under the statutes listed below absent a termination ofthis guardianship and restoration of rights.42 USC 1983 FOR VIOLATIONS OF 14 TH AMENDMENT§ 1983. Civil Action for Deprivation of RightsEvery person who, under color of any statute, ordinance, regulation, custom, orusage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. The Fourteenth Amendment guarantees the following:AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND IMMUNITIES;DUE PROCESS; EQUAL PROTECTION; APPOINTMENT OFREPRESENTATION; DISQUALIFICATION OF OFFICERS; PUBLICDEBT; ENFORCEMENT§ 1. All persons born or naturalized in the United States and subject to thejurisdiction thereof, are citizens of the United States and of the Statewherein they reside. No State shall make or enforce any law which shallabridge the privileges or immunities of citizens of the United States; norshall any State deprive any person of life, liberty, or property, without dueprocess of law; nor deny to any person within its jurisdiction the equalprotection of the laws.* * *The Fourteenth Amendment is a source of substantive and procedural due process. Additionally, for purposes of the Fourteenth Amendment and 42 U.S.C. § 1983. See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L. Ed. 2d 689 (2006). “Title 42 U.S.C. § 1983 provides that ‘[e]very person’ who acts under color of state law to deprive another of a constitutional right shall be answerable to that person in a suit for damages.”Imbler v. Pachtman, 424 U.S. 409, 417 (1976). The United States Supreme Court has noted that: [i]ts language is absolute and unqualified; no mention is made of any privileges, immunities, or defenses that may be asserted. Rather, the Act imposes liability upon “every person” who, under color of state law or custom, “subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. Owen v. City of Independence , 445 U.S. 622, 635 (1980)(quoting portions of § 1983)(emphasis in orig.).Under 42 U.S.C. § 1983 a plaintiff must allege the following:(1) A person;(2) acting under color of state law;(3) deprived the plaintiff of a right secured by the Constitution and lawsof the United States.A COUNTY IS A “PERSON”A person is defined as a municipality, state or governmental unit. The SupremeCourt concluded that Congress intended “municipalities and other local governmental units to be included among those persons to whom § 1983 applies,” Monell, 436 U.S. at 690, i.e., that local governmental units were “persons” who could act unconstitutionally.It held that local governing bodies could be sued directly under § 1983 for “monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” A local governmental entity, municipality or school district is a person for purposes of § 1983. See, e.g., Board of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 117 S. Ct. 1382, (1997) (County and Sheriff’s Dept.).A persistent, widespread practice of discrimination and civil rights violations, evenif not officially adopted governmental policy, where it is so common and widespread is sufficient to constitute a custom that fairly represents municipal policy. Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (On Petition for Rehearing) En banc) (per curiam), cert. denied, 472 U.S. 1016, 105 S.Ct. 3467, 87 L.Ed.2d 612 (1985).“COLOR OF STATE LAW”The “color of state law” requirement refers simply to the fact that the personviolating the citizens’ constitutional rights is clothed in apparent authority of law, which is indisputable in this case and every other case where a judicial officer or officer of the court is given the authority to deprive a citizen of liberty and property. In West v. Atkins, the United States Supreme Court noted that the “traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised [a misuse of] power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).To constitute state action, the deprivation must be caused by the exercise ofsome right or privilege created by the State… or by a person for whom the State is responsible, and the party charged with the deprivation must be a person who may fairly be said to be a state actor. State or governmental (county) employment is generally sufficient to render the defendant a state or governmental actor. It is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State. Private persons, jointly engaged with state officials in the challenged action, are acting “under color” of law for purposes of § 1983 actions.Dennis v. Sparks, 449 U.S. 24 (1980). The Supreme Court recently confirmed that private parties can be liable if their actions are taken under color of state law, though they may also be entitled to qualified immunity for those actions. See Filarsky v. Delia, 132 S. Ct. 1657 (2012).QUALIFIED IMMUNITYPublic officials enjoy only qualified immunity under section 1983 for constitutional violations, provided their actions are not taken with deliberate indifferenceto known constitutional rights. To determine whether the plaintiff has overcome the presumption of qualified immunity, the Court first considers whether the plaintiff has proven a violation of a clearly established constitutional right . Collins v. Ainsworth, 382 F.3d 529, 537 (5th Cir.2004 ). A right is “clearly established” if its contours are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) . If that prong is met, the court must consider whether the defendant’s “actions were objectively reasonable” in light of “law which was clearly established at the time of the disputed action.” Collins, 382 F.3d at 537 . “The touchstone of this inquiry is whether a reasonable person would have believed that his conduct 748*748 conformed to the constitutional standard in light of the information available to him and the clearly established law.” Glenn v . City o f Tyler , 242 F.3d 307, 312 (5th Cir. 2001) .11 Given oaths are taken to uphold the Constitution and laws of the United States by public officials, not one can claim ignorance of the law after taking this sworn oath. Farmer v. Brennan, 511 U.S. at 840-42. Due process and equal protection were incorporated into the Constitution in 1868, no public official can reasonably claim to be ignorant of its core protections.SUPERVISOR LIABILITYTo prove a § 1983 cause of action against a supervisor, the plaintiff must allege“either a supervisor personally was involved in the constitutional violation or that there is a ‘sufficient causal connection’ between the supervisor’s conduct and theconstitutional violation.” Rios v. City of Del Rio, 444 F.3d 417, 425 (5th Cir. 2006)(quoting Evett v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 330 F.3d 681, 689 (5th Cir. 2003)). Roberts v. City of Shreveport, 397 F.3d 287 (5th Cir. 2005). To establish § 1983 liability against supervisors, a plaintiff must show that:(1) the [supervisor] failed to supervise or train;(2) a causal connection existed between the failure to supervise or trainand the violation of the plaintiff’s rights; and(3) the failure to supervise or train amounted to deliberate indifferenceto the plaintiff’s constitutional rights. Id. at 292.DUE PROCESS VIOLATIONSProcedural due process violations exist when a governmental entity fails to followits own statutory procedures mandated by federal and state law, such as this case where Mother was deprived of liberty and/or property. In this case, Mother was deprived of a meaningful opportunity to participate in proceedings toremove her chosen guardian, Daughter, as guardian and appoint MARYROWAN, a predatory guardian. Michigan statutes governing guardianship were not followed, but flagrantly ignored. Reference to the attached guide and governing Michigan statutes to impose a guardianship upon a citizen clearly shows that procedures mandated were not followed. Substantive due process rights guaranteed include equal protection of the law and due process of law, which includes notice and a meaningful opportunity to be heard. The rules of evidence mandating a finding of incapacity under Daubert and Rule 702 were egregiously violated.DAUBERT , RULE 702 AND EXPERT TESTIMONYThe United States Supreme Court mandates compliance with Rule of Evidence702 in order for any expert opinion or testimony to be admitted in any court of law and the Daubert case is the landmark case that defines in excruciating detail what is required before an expert can even opine on a matter. Daubert v. Merrell-Dow Pharmaceuticals, 113 S.Ct. 2786 (1993) (hereafter “Daubert”). See attached advanced continuing education course by Texas Probate Judge Steven King of Tarrant County, Texas; Daubert and its impact on estate and fiduciary litigation. Michigan Rule of Evidence 702 mirrors the federal rule 702 and states:Rule 702 Testimony by ExpertsIf the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data,(2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts ofthe case.The United States Supreme Court, in the 1999 decision of Kumho Tire Corp., Ltd.v. Carmichael, 119 S.Ct. 1167, 526 U.S. 137 (1999), held that the gatekeeper function of the trial court, established in Daubert applied to all expert testimony. Id. at 1174. Daubert governs the admissibility of expert testimony in EVERY STATE as ruled by the high court, such that Michigan courts cannot evade its requirements. The requirements of Daubert are to safeguard against unqualified individuals or laypersons relying on junk science or supposition (rather than evidence) from being allowed to testify in a court of law and provide evidence. Daubert mandates the following, w hich is more fully describedin the attached article by Judge Steven King.1. Gate One: Helpfulness –Pursuant to Rule 702, the subject matter of the expert’s testimony must “assist the trier of fact.” If the expert’s methodology, reasoning, or foundation is unreliable, the evidence will not assist the trier of fact.2. Gate Two: Qualifications –the expert must be qualified on a case specificopinion- 3. Gate Three: Relevancy – The expert testimony must be sufficiently tied to thefacts of the case so that it will aid the jury in resolving the factual dispute.4. Gate Four: Methodological Reliability The expert’s methodology must bereliable.5. Gate Five: Connective Reliability –The expert’s reasoning applying his/hermethodology must be sound for the expert’s opinion to be admissible.6. Gate Six: Foundational Reliability –Reliability of the underlying facts or dataupon which the expert’s opinion is based.Judge King is indisputably an expert on guardianship and rightfully defines thestandard mandated to deem a citizen incompetent or incapacitated and states,Hiring a psychiatrist or neurologist who has experience determining andtestifying to capacity, or lack thereof, in guardianship proceedings is ofgreat importance. They will be familiar with the legal test for capacity.Geriatric psychiatrists and neurologists should be used in appropriate casesif possible due to their specialized knowledge. A good approach toselecting an expert is to ascertain and hire the physician the judge appointson independent psychiatric exams. These individuals generally have thejudge’s respect and the requisite level of expertise in the areas of capacityand mental examinations. Regardless of who is selected, he or she shouldbe board certified, if possible” in specialized areas treating elderlysuspected of Alzheimer’s or dementia. See attached article by Judge StevenKing on Daubert.Daubert and Rule 702 were flagrantly ignored and the specialist required toevaluate Mother’s mental capacity was unqualified by the above statement and mandate that a medical diagnosis come only from an M.D., at a minimum. The law prefers specialists and a psychologist is not a medical doctor. George Fleming is a psychologist, not a medical doctor and is guilty of practicing medicine without a license by undertaking competency examinations, such as Mother’s. There was no medical doctor who evaluated her competency to deem her incapacitated from the outset and her personal physician flatly denied that she was incompetent in the least.Mother’s primary care doctor, DR. RUBINA AHMED, has also opined that she is mentally competent. The county failed to present any expert testimony or even so much as a sworn affidavit attesting to the same. Without clear and convincing evidence of Mother being incapacitated, guardianship was not legally authorized. This violated her constitutional rights.Michigan Probate Code also mandates that the proposed ward’s desire of aguardian be considered and Mother’s clearly stated demand for her daughter to be her guardian was ignored as she was given over like chattel to MARY ROWAN without cause to justify such a devastating deprivation of rights.Daughter initially opined that her mother appeared to suffer fromdrug addiction, but her lay opinion was incorrect because it was based upon deception of fiduciaries looking to exploit Mother, rather than truth. Daughter ultimately determined that her mother did not suffer drug addiction, but was in severe pain and needed intervention from a medical professional. Daughter promptly secured care for her mother in the form of three surgeries to eliminate the excruciating pain in her back.MARY ROWAN was consciously indifferent and/or completely ignorant and blase about Mother’s medical problems and failed to comply with even minimum standards for a guardian. See Affidavit of Daughter, Daughter NEVER INTENDED that her statements be relied upon as medical evidence, nor should they have been afforded such weight. Moreover, Mother’s back pain was at best a temporarily disabling condition rather than permanent incapacity justifying guardianship by a stranger intent on exploiting her. Mother is not mentally incapacitated and cannot be discriminated against simply based upon conditions of aging, such as sciatic nerve pain common to many. Arthritis and bone spurs resolve when treated and Mother’s pain is all but gone save brief scheduled medical treatments responsibly overseen by her daughter and ignored by ROWAN and every person charged with protecting Mother.ADA CLAIMS FOR DISCRIMINATIONCongress enacted the ADA “to provide a clear and comprehensive nationalmandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Four types of discrimination have been identified as actionable:disability discrimination, associational discrimination, unjustified segregation that fails to comport with the mandate of least restrictive alternative, and/or illegal retaliation against any person advocating for the rights of a person with a suspected disability. The ADA was violated in all of the foregoing ways in this case.First, Mother’s rights were disregarded entirely based upon her apparentdisability and inability to challenge the powers that be. Second, Mother wasdiscriminated against in her choice of associations when she was denied access or any form of communication with her daughter for over 8 months.Outrageously, Daughter searched for her mother in panic those 8 months before 2 In Olmstead v. L.C., 527 U.S. 581,598, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (plurality opinion)).Instead, the plurality in Olmstead held that it was “satisfied that Congress had a more comprehensive view of the concept of discrimination advanced in the ADA,” which was passed to stamp out the “unjustified`segregation’ of persons with disabilities.” Olmstead, 527 U.S. at 598, 119 S.Ct. 2176 discovering she was virtually imprisoned by ROWAN in a warehouse in East Detroit.ROWAN’S actions are criminal in her neglect, abuse and exploitation of Mother.Third, Daughter was unjustifiably segregated in violation of the OlmsteadAct and integration mandate of Title II, requiring governmental units to provide the least restrictive alternative and community based services while avoiding seclusion or institutionalization of any form (even nursing homes). Mother was deprived of the choice to reside with family or friends, but hidden like a hostage by ROWAN. The fourth way the ADA was violated with respect to Mother and Daughter was extreme retaliatory actions by ROWAN against Daughter, such as pursuing false criminal charges dismissed by the Judge as baseless. ROWAN appeared at Daughter’s home to take Mother by force with no court order, permitting Daughter to use reasonable force to protect her mother and herself.ILLEGAL RETALIATION UNDER TITLE IIIUnder Michigan law, a person can use deadly force against someone to defendthemselves if they believe deadly force is the only means of protecting themselves or their family members, with no requirement to retreat. That’s as long as the person isn’t engaged in a crime, is somewhere they’re legally allowed to be, and feels deadly force is the only way to defend themselves. The charges ROWAN brought against Daughter included obstructing a public servant and assault and battery for merely spraying ROWAN with a water hose to protect Mother from being kidnapped by ROWAN because ROWAN would not leave after being warned to get off the property. ROWAN repeatedly harassedDaughter before Daughter chose to spray her with a hose, causing Daughter to be fearful of her mother’s safety as well as her own. Had ROWAN appeared with a court order, Daughter would never have been so alarmed and frightened. The charges were dismissed as frivolous given Daughter could have legally sprayed her full of lead rather than water under Michigan “stand your ground” law.SCOPE OF ADA PROTECTIONThe ADA’s protections are sweeping and comprehensive as evidence byCongress twice amending the regulations in 2008 and 2016 in response to courtswatering down the protections intended. Courts have universally held that anyactivity performed by a government entity falls within the definition of “services,programs, or activities” denied to a disabled individual. Frame v. City ofArlington, 657 F.3d 215 (5th Cir.2011) (en banc), cert. denied,U.S., 132 S.Ct. 1561, 182 L.Ed.2d 168 (2012). In Frame , the court found that “[t]he Supreme Court has broadly understood a `service’ to mean `the performance of work commanded or paid for by another,’ or `an act done for the benefit or at the command of another.'” See id. at 226. This brings in independent contractors to hold the county liable so that it cannot evade liability by using 1099 appointees instead of employees to violate the ADA. The County cannot violate the ADA by using independent contractors to violate it for the county.SECTION 504 OF THE REHABILITATION ACT OF 1973The ADA and Section 504 of the Rehabilitation Act of 1973 impose upon publicentities an affirmative obligation to make reasonable accommodations for disabled individuals.. The accommodation must be sufficient to provide a disabled person meaningful access to the benefit or service offered by a public entity. Se e Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). In evaluating whether a plaintiff has stated a claim for disability discrimination, the application of the ADA and the Rehabilitation Act are substantially the same, with the difference being that Title II violations do not require that discrimination be solely based upon a person’s disability. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir.), cert. denied, 531 U.S. 959, 121 S.Ct. 384, 148 L.Ed.2d 296 (2000).Under Title II of the ADA, “`discrimination need not be the sole reason'” for theexclusion or denial of benefits to the plaintiff, see Soledad v. United StatesDepartment of Treasury, 304 F.3d 500, 503-04 (5th Cir.2002) (quoting Ahrens v.Perot Systems Corp., 205 F.3d 831, 835 (5th Cir.), cert. denied, 531 U.S. 819, 121 S.Ct. 59, 148 L.Ed.2d 26 (2000)), 29 U.S.C. § 794(a). Other courts have reached similarly all-encompassing concepts of what can constitute a service or benefit under the ADA. See Noel v. New York City Taxi & Limousine Commission, 687 F.3d 63, 68 (2d Cir. 2012) (quoting Innovative Health Systems v. City of White Plains, 117 F.3d 37, 45 (2nd Cir.1997) (“[T]he phrase `services, programs, or activities’ has been interpreted to be `a catch-all phrase that prohibits all discrimination by a public entity.'”)); Kiman v. New Hampshire Department of of Corrections, 451 F.3d 274, 286-87 (1st Cir. 2006) Jones, Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir.1998) (concluding that “services, programs, and activities include all government activities” and that ” the phrase `services, programs, or activities’ encompasses virtually everything that a public entity does”) . Hobart v. City of Stafford , 784 F.Supp.2d 732, 756-57 (S.D.Tex.2011) Salinas v. City of Braunfels, 557 F.Supp.2d 771, 775 (W.D.Tex.2006) Barden v.City of Sacramento, 292 F.3d 1073, 1076 (9thCir. 2002), cert. denied, 539 U.S. 958, 123 S.Ct. 2639, 156 L.Ed.2d 656 (2003))Mother (1) is a qualified individual within the meaning of theADA; (2) who was excluded from participation in, or denied benefits of, services,programs, or activities for which the public entity is responsible, or was otherwisediscriminated against by the public entity; and (3) that such exclusion, denial ofbenefits, or discrimination was by reason of disability.” Melton v. Dallas AreaRapid Transit, 391 F.3d 669, 671-72 (5th Cir.2004) . Specifically, Mother’stemporary disability rendered her vulnerable to the very exploitation ROWANcommitted and powerless to stop it. The county is estopped from denying Mother is a person with a disability by virtue of the court’s ruling, deeming herincapacitated. The ADA defines “disability” broadly as: (A) a physical or mentalimpairment that substantially limits one or more major life activities of suchindividual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Id. at § 12102. It At a bare minimum, notice and a meaningful opportunity to participate is required for the county to avoid liability forviolating the ADA.3 Significantly incapacity or incompetence is not the sameconcept as merely having a disability or temporarily disabling condition. Were thattrue, every State would violate the ADA through guardianship proceedings of thedisabled.CONCLUSION AND RELIEF REQUESTEDThe foregoing demonstrates the violations of Mother’s rights that are ongoing and shock the conscience for which this guardianship must be terminatedand her rights restored. Daughter respectfully prays that this Honorable Judge take notice of her affidavit and the attached legal authorities and references and dismiss the guardianship , restoring Mother’s rights in full.3 The law recognizes temporary incapacity and equity precludes the county having its cake and eating it too by claiming in retrospect that someone deprived of rights in violation of federal law was not actually disabled to be covered by the ADA’s protection
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