Opinion
Case No. 2:18-cv-01404-SU
08-08-2018
A.F., Plaintiff, v. CHRISTOPHER EVANS, in his individual capacity; KRISTA TURNER, in her individual capacity; JANIE BURCART, in her individual capacity; OREGON DEPARTMENT OF HUMAN SERVICES (DHS), a government agency; and JANE OR JOHN DOES DEFENDANTS 1-5, in their individual capacities; Defendants.
OPINION AND ORDER
:
Plaintiff A.F. is a minor child who resides with his biological father in La Grande, Oregon. Compl. ¶ 1 (Docket No. 1). Plaintiff brings this civil rights action against the Oregon Department of Human Services ("DHS"), DHS employees, and a former attorney of A.F., for alleged civil rights violations and personal injury claims related to damages he allegedly suffered in foster care and in a state-sponsored durable guardianship. Id. ¶¶ 2-8, 12, 65.
Petitioner Heidi Van Kirk has petitioned to be appointed as guardian ad litem for A.F. Pet. (Docket No. 2). Petitioner is an attorney who practices in Umatilla County, Oregon. Id. ¶ 1. A.F., who was born in 2003, does not have a duly appointed representative or general guardian. Id. ¶ 2. A.F.'s biological father and sole legal custodian consents to the appointment of petitioner as guardian ad litem. Rizzo Decl. ¶ 2, Ex. 1, Biological Parent Decl. (Docket No. 3-1). A.F.'s attorney represents that Petitioner "is competent and responsible to protect A.F. in this action." Pet. ¶ 4 (Docket No. 2).
Under Fed. R. Civ. P. 17(c)(1), a guardian or conservator may sue on behalf of a minor. "A minor . . . who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor . . . who is unrepresented in an action." Fed. R. Civ. P. 17(c)(2) (emphasis added). State law determines the capacity of a party to sue or be sued. Id. 17(b)(3). Or. Rev. Civ. P. 27 provides the standards for appointment of a guardian ad litem for a minor. See id. 27(d) ("The court may appoint a suitable person as a guardian ad litem . . . .")
There has been no objection to the appointment of petitioner Van Kirk. The Court has reviewed the applicable federal and state law, and the filings regarding petitioner, and has determined that petitioner is competent to serve as guardian ad litem for A.F., and that appointment of a guardian ad litem for the minor plaintiff is proper in this matter.
Accordingly, the Court GRANTS petitioner's Petition for Appointment of Guardian ad litem re A.F. (Docket No. 2) and appoints petitioner Heidi Van Kirk as guardian ad litem for plaintiff A.F.
IT IS SO ORDERED.
DATED this 8th day of August, 2018.
/s/ Patricia Sullivan
PATRICIA SULLIVAN
United States Magistrate Judge