 GEORGIA ADVOCACY OFFICE, INC., a Georgia nonprofit corporation and D.M., a child, Plaintiffs-
Appellants,

                                                      v.

   Larue T. CAMP, as County Director of Jasper County Department of Family and Children Services;
Jasper County Department of Family and Children Services, et al., Defendants-Appellees.

                                                No. 98-8722.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                               April 20, 1999.

Appeal from the United States District Court for the Middle District of Georgia. (No. 5:96-CV-483-2-DF),
Duross Fitzpatrick, Judge.

Before HULL and MARCUS, Circuit Judges, and RONEY, Senior Circuit Judge.

        HULL, Circuit Judge:

        Appellant Georgia Advocacy Office, Inc. ("GAO") seeks to protect and advocate the rights of

individuals "with mental illness" pursuant to the Protection and Advocacy for Individuals with Mental Illness

Act ("PAIMI Act"). 42 U.S.C. §§ 10801-10807. As a provider of legal and advocacy services, GAO claims

to represent D.M., a minor whom GAO alleges is an "individual with mental illness" for purposes of the

PAIMI Act. GAO filed suit on behalf of itself and D.M. against the individuals and organizations (referred

to collectively as "Defendants") who allegedly were blocking GAO's access to D.M. and to the Methodist

Home for Children and Youth in Macon, Georgia (the "Methodist Home"), where D.M. resides. GAO claims

that this denial of access violated the PAIMI Act and the Georgia Constitution.

        After denying GAO's several requests for injunctive relief, the district court ultimately dismissed this

action on the grounds (1) that no actual case or controversy involving access to D.M. existed because D.M.

did not wish to be represented by GAO and (2) that GAO's claims involving general access to the Methodist

Home involved injuries that were too speculative to create a substantial justiciable controversy. GAO, on

behalf of itself and D.M., appeals. After review, we affirm the district court's dismissal of this action.

                                             I. BACKGROUND
A.      D.M. Reportedly Requests GAO Representation

        In May 1995, the Juvenile Court of Jasper County, Georgia, placed D.M., then a minor, in the

temporary legal custody of the Jasper County Department of Family and Children Services ("DFCS").

Subsequently, in November 1995, DFCS and Georgia's Multi-Agency Team for Children ("MATCH")

Committee placed D.M. in West Central Georgia Regional Hospital ("West Central").

        GAO asserts that its legal and advocacy representation of D.M. commenced on February 13, 1996,

when D.M. telephoned GAO and requested legal assistance in connection with her status as a patient at West

Central. According to GAO, D.M.'s initial request was for GAO to assist her in being released from West

Central to a less restrictive environment, and in particular, a foster family setting. On November 4, 1996,

D.M. was moved from West Central to the Methodist Home by DFCS and Georgia's MATCH Committee.

B.      Methodist Home

        The Methodist Home is a group home that offers a program of small group living in an open

residential setting with as much contact and integration with the community as possible. Approximately

ninety children and youth live at the Methodist Home. The parties dispute whether any of the Methodist

Home residents are "individuals with mental illness" for purposes of the PAIMI Act. Defendants argue that

no residents fit this description. Defendants point out that no children or youth who present a danger to

themselves or others will be admitted to the home and that residents must be able to function in public school.

        GAO counters that there are individuals covered under the PAIMI Act at the Methodist Home. GAO

observes that the Methodist Home provides mental health screening and evaluation, counseling, medication

supervision, and education. In addition, a psychiatrist and a psychologist visit the Methodist Home several

times each week.

        GAO does not claim to have sought access to the Methodist Home prior to D.M. moving there.

However, since D.M.'s arrival at the Methodist Home, GAO claims that GAO employees, in their capacities

as D.M.'s legal counsel and as GAO representatives, have sought and have been denied access to D.M. at the



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Methodist Home. For example, on several occasions in late 1996 and early 1997, attempts by GAO

employees to contact D.M. by telephone were denied because D.M. had lost telephone and visitation

privileges shortly after arriving at the Methodist Home.

C.       Litigation

         On December 16, 1996, GAO instituted this action on behalf of itself and D.M. against Defendants.

In the complaint, GAO alleged that Defendants were violating the Georgia Constitution by blocking D.M.'s

access to her GAO attorney. Ga. Const. art. I, § 1, ¶ 12. In addition, GAO alleged that Defendants were

violating the PAIMI Act, 42 U.S.C. § 10805(a)(1)(B) and (a)(3), by denying GAO access "to its client D.M.

and to the Methodist Home."

         After the commencement of this lawsuit, GAO and Defendants reached an agreement in late 1996

to allow Mrs. Anderson, who had been D.M.'s GAO advocate, to visit D.M. at the Methodist Home as a

"visiting resource," not as a GAO representative. Mrs. Anderson continued to visit D.M. at the Methodist

Home through July 1997. In July 1997, Mrs. Anderson requested permission for D.M. to come to Mrs.

Anderson's home for an overnight visit. However, according to Defendants, Mrs. Anderson changed her mind

after she was advised that an overnight visit might jeopardize GAO's legal position in this case. Defendants

contend that D.M. began engaging in unacceptable behavior as a result of this event, culminating in D.M.'s

running away from the Methodist Home to GAO's offices in Atlanta, Georgia. Consequently, the Methodist

Home determined that it was "therapeutically necessary" to terminate Mrs. Anderson's "visiting resource"

relationship with D.M.

         Although it is clear that GAO requested access to the Methodist Home for purposes of visiting D.M.,

there is no allegation or evidence that GAO requested access to the Methodist Home generally-for the purpose

of providing information about GAO services to residents other than D.M., for instance.1



     1
    We observe that GAO's complaint does not contain an allegation that GAO sought access to the
Methodist Home generally for purposes such as providing information to residents about GAO services
and that Defendants illegally denied general access to the Methodist Home for such purposes. Instead,

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        On September 17, 1997, GAO filed a motion for summary judgment. The district court deferred

ruling on this motion until after discovery. Following the close of discovery in March 1998, Defendants filed

their own joint motion for summary judgment. In April 1998, GAO and D.M. filed their response to

Defendants' motion for summary judgment.

D.      In Camera Interview of D.M.

        D.M. decided on her own to speak to the district court judge. Accordingly, the district court

conducted an in camera interview of D.M. No objections were raised to this interview, which took place on

May 2, 1998. A transcript of the court's in camera interview is in the record.

        On May 11, 1998, the district court dismissed the action and entered judgment for Defendants. In

the order dismissing the action, the district court recites that during the interview, D.M. stated that she was

not being mistreated at the Methodist Home and did not want or need a lawyer. The transcript of the

interview also shows that D.M. stated that the "Methodist Home is a very nice program" and "a very good

place," and that she had "matured a lot" since she had been there. According to the district court and the

transcript, while D.M. desired to have a personal relationship with Mrs. Anderson, she had no interest in

being represented by the attorneys at GAO. Based on the interview, the district court concluded that "[t]here

can be no actual case or controversy involving access to D.M. if she does not wish to be represented."

        As for GAO's claims for access to the Methodist Home generally, the district court found that GAO

had offered no evidence about any minor, other than D.M., within the care of the Methodist Home, who might

qualify for the protection of the PAIMI Act. Thus, the district court found that GAO could not show any harm

or potential harm that would arise from GAO's limited access to the Methodist Home. Based on these




GAO's complaint repeatedly alleges that GAO sought access to D.M. and that Defendants illegally denied
access to D.M. The complaint's references to access to the Methodist Home are all in the context of D.M.
While at the end of the complaint GAO includes a separate prayer for relief seeking access to the
Methodist Home, there are no preceding allegations that GAO sought general access for purposes relating
to residents other than D.M. and was illegally denied such general access.

                                                      4
findings, the district court determined that GAO's general-access claims were "too speculative to create a

substantial justiciable controversy."

                                              II. DISCUSSION

A.       Access to D.M.

         After review of the relevant portions of the record and the transcript of the district court's interview

with D.M. in particular, we conclude that the district court correctly found that D.M. was not being mistreated

at the Methodist Home, that D.M. did not wish to be represented by GAO, and hence that no ongoing

attorney-client relationship existed. Because no ongoing attorney-client relationship existed, GAO had no

right of access to D.M. and vice versa. Thus, the district court correctly concluded that there was "no actual

case or controversy involving access to D.M." In any event, D.M. has turned eighteen recently and is

remaining at the Methodist Home until she graduates from high school, which arguably moots at least part

of GAO's claim.

B.       General Access to the Methodist Home

         The district court also correctly dismissed GAO's claim for general access to the Methodist Home,

albeit for the wrong reason. The PAIMI Act provides that a state protection and advocacy system "shall ...

have access to facilities in the State providing care or treatment." 42 U.S.C. § 10805(a)(3). Thus, GAO

contends that it has a right of access to certain facilities covered by the PAIMI Act for the purpose of

performing certain ombudsman-type functions under the PAIMI Act and regulations.2 The district court

dismissed GAO's claims for access to the Methodist Home generally on the basis that GAO offered no




     2
    For example, in certain circumstances a system "shall have reasonable unaccompanied access to
residents at all times necessary to conduct a full investigation of an incident of abuse or neglect." 42
C.F.R. § 51.42(b). In addition, a system "shall have reasonable unaccompanied access to facilities ... and
to programs and their residents" for the purposes of (1) providing information and training about
individual rights and about the services available from the protection and advocacy system, (2)
monitoring compliance with respect to the rights and safety of residents, and (3) inspecting, viewing, and
photographing all areas of a facility which are used by or accessible to residents. § 51.42(c).

                                                       5
evidence that Methodist Home residents other than D.M. would qualify as "individuals with mental illness"

for the protection of the PAIMI Act.

        We conclude that the district court erred in making this evidentiary finding because there was

sufficient evidence to indicate that a case or controversy exists about whether the Methodist Home did have

other residents "with mental illness" who would qualify for the protection of the PAIMI Act. The PAIMI Act

defines an "individual with a mental illness" as someone:

                (A) who has a significant mental illness or emotional impairment, as determined by a mental
        health professional qualified under the laws and regulations of the State; and

               (B)(i) who is an inpatient or resident in a facility rendering care or treatment, even if the
        whereabouts of such inpatient or resident are unknown.

42 U.S.C. § 10802(4) (emphasis supplied). The record contains evidence that a psychiatrist and a

psychologist each visit the Methodist Home at least three times a week and that the Methodist Home provides

mental health services including screening and evaluation, counseling, medication supervision, and education.

Since the § 10802(4) definition includes significant "emotional impairment," we find the evidence was

sufficient to create a case or controversy over whether the Methodist Home was a facility covered by the

PAIMI Act and over whether the Methodist Home rendered care and treatment to residents "with a mental

illness" as defined by the PAIMI Act. We emphasize, however, that our conclusion on this point simply

would have allowed the case to proceed to be considered on the merits and would not have constituted any

finding or indication of the merits of the issues of whether the Methodist Home is "a facility" covered by the

PAIMI Act or has residents who qualify for PAIMI Act protection.

        Although this finding is erroneous, the district court, nonetheless, correctly dismissed GAO's

complaint for lack of a live case or controversy. There was no allegation or evidence that GAO had requested

access to the Methodist Home generally for purposes of providing information to or assisting residents outside

of the context of D.M. No such evidence was introduced with the summary judgment motions or at any other

time in the record. Moreover, it is not clear how the Methodist Home and other Defendants would respond



                                                      6
to such a request. In other words, GAO's general-access claim involves merely an abstract or hypothetical

dispute.

           Thus, we find that GAO's general-access claim is not ripe for judicial review. See Socialist Workers

Party v. Leahy, 145 F.3d 1240, 1244-47 (11th Cir.1998) (explaining the "[t]hree strands of justiciability

doctrine-standing, ripeness, and mootness"). As this circuit repeatedly has stated, to determine whether a

claim is ripe, a court must examine " ' "whether there is sufficient injury to meet Article III's requirement of

a case or controversy, and if so, whether the claim is sufficiently mature, and the issues sufficiently defined

and concrete to permit effective decisionmaking by the court." ' " Id. at 1244 (quoting Digital Properties,

Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir.1997) (quoting Cheffer v. Reno, 55 F.3d 1517, 1524

(11th Cir.1995))). GAO has not shown sufficient injury and its general-access claim is not sufficiently mature

to permit effective decisionmaking by the court. Thus, although for a different reason than stated by the

district court, we conclude that GAO's general-access claim at this juncture is "too speculative to create a

substantial justiciable controversy" and should be dismissed.

           In dismissing GAO's general-access claim, the district court did not specify whether the dismissal

was with prejudice or without prejudice. However, we clarify that the dismissal of this claim should be

considered a dismissal without prejudice. Because the general-access claim was not ripe for review, the

district court did not have subject matter jurisdiction over the claim. See Digital Properties, Inc. v. City of

Plantation, 121 F.3d 586, 591 (11th Cir.1997) ("The determination of ripeness 'goes to whether the district

court had subject matter jurisdiction to hear the case.' " (citing Greenbriar, Ltd. v. City of Alabaster, 881 F.2d

1570, 1573 n. 7 (11th Cir.1989))). Thus, the district court could not have adjudicated the merits of the

general-access claim or dismissed that claim with prejudice. See Crotwell v. Hockman-Lewis Ltd., 734 F.2d

767, 769 (11th Cir.1984) (changing a dismissal "with prejudice" to a dismissal "without prejudice" on the




                                                        7
basis that "the court lacked subject matter jurisdiction over the action" and hence "had no power to render

a judgment on the merits").3

        AFFIRMED.




   3
     We also note that the Methodist Home contends that GAO's general-access claim lacks merit because
the Methodist Home already has existing systems in place to protect the rights of its residents, that GAO
may supply such services but not supplant existing services, that there was no evidence of any abuse or
neglect at the Home to justify any access by GAO, that GAO failed to follow the PAIMI Act's regulations
that require each system, like GAO, to attempt first to resolve disputes through negotiation and mediation
before commencing litigation, and that GAO failed to establish other jurisdictional requirements for their
claims. Nothing herein should be construed as any ruling on those issues raised in this case.

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