Kennard Davis v. James Walker, et al

Filing

FILED OPINION (RICHARD C. TALLMAN, SANDRA S. IKUTA and ANDREW P. GORDON) The district court is welcome to contact this court s Pro Se Unit Supervising Attorney for assistance in locating someone outside the Eastern District of California who would be willing to accept the appointment. VACATED; REMANDED. Each party shall bear its own costs. Judge: RCT Authoring, FILED AND ENTERED JUDGMENT. [9027260] [12-15856, 12-15859]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KENNARD LEE DAVIS,
Plaintiff-Appellant,
v.

No. 12-15856
D.C. No.
2:10-cv-02139KJM-DAD

JAMES WALKER, Warden; SAMUEL
MCALPINE; CHERYL BAKEWELL;
RICHARD MARDER,
Defendants-Appellees.

KENNARD LEE DAVIS,
Plaintiff-Appellant,
v.
JAMES WALKER, Warden; S. FLORY;
DA ROSA; A. NANGALAMA;
EDMONSON,
Defendants-Appellees.

No. 12-15859
D.C. No.
2:08-cv-00593KJM-DAD

OPINION

Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted
January 16, 2014—San Francisco, California

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DAVIS V. WALKER
Filed March 24, 2014
Before: Richard C. Tallman and Sandra S. Ikuta, Circuit
Judges, and Andrew P. Gordon, District Judge.*
Opinion by Judge Tallman

SUMMARY**

Prisoner Civil Rights
The panel vacated the district court’s order, which denied
a prisoner’s request to appoint a guardian ad litem and instead
stayed the prisoner’s civil rights case until the prisoner was
found “restored to competency” and capable of protecting his
own interest through self-representation.
The panel first held that the district court’s “lengthy and
indefinite” stay which put the prisoner “effectively out of
court,” was an appealable final decision, or alternatively that
the stay was reviewable as a collateral order.
Although recognizing that the prisoner was incompetent,
the district court declined to appoint a guardian ad litem
because the Pro Bono Coordinator for the Eastern District of
California advised the court that no one was available to

*

The Honorable Andrew P. Gordon, United States District Judge for the
District of Nevada, sitting by designation.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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undertake the representation. The panel held that the district
court’s stay order failed to adequately protect the prisoner’s
interests and thus did not constitute an appropriate order
under Rule 17(c)(2) of the Federal Rules of Civil Procedure.
The panel noted that in addition to consulting with its Pro
Bono Coordinator, the district court could have, among other
things, sought counsel, made inquiry of the bar associations,
or inquired as to whether law schools that have clinical
programs or senior centers with social workers would be
willing to undertake the necessary representation. Instead,
the district court’s stay order amounted to a dismissal with
prejudice of the prisoner’s actions. The panel directed the
district court, on remand, to consider whether it should
appoint a guardian ad litem or craft an appropriate order
designed to protect the prisoner’s interests.

COUNSEL
Kayvan B. Sadeghi (argued), Morrison & Foerster LLP, New
York, New York, for Plaintiff-Appellant.
Jose Zelidon-Zepeda (argued), Deputy Attorney General, San
Francisco, California, for Defendants-Appellees James
Walker, Samuel McAlpine, and Cheryl Bakewell in appeal
number 12-15856, and for Defendants-Appellees James
Walker, S. Flory, Da Rosa, A. Nangalama, and Edmonson in
appeal number 12-15859.
Thomas J. Doyle, Schuering Zimmerman & Doyle, LLP,
Sacramento, California, for Defendant-Appellee Richard
Marder, M.D., in appeal number 12-15856.

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OPINION

TALLMAN, Circuit Judge:
This appeal arises from two consolidated cases in which
Kennard Lee Davis, a prisoner suffering from schizoaffective
disorder and who is proceeding pro se, sought damages from
California prison officials under 42 U.S.C. § 1983. Davis
moved for appointment of a guardian ad litem pursuant to
Rule 17(c)(2) of the Federal Rules of Civil Procedure, which
provides that:
A minor or an incompetent person 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 or incompetent
person who is unrepresented in an action.
(emphasis added). The district court recognized throughout
the pendency of both cases that Davis was, and remains,
incompetent but denied his request for a guardian ad litem
because the Pro Bono Coordinator for the Eastern District of
California advised the court that no one was available to
undertake the representation. In response, the court stayed
Davis’s cases indefinitely until he was found “restored to
competency” and “capable of protecting his own interests
through self-representation.” We must determine whether,
under Rule 17(c)(2), the district court erred by declining to
appoint a guardian ad litem and instead staying Davis’s cases
indefinitely until he is found to be restored to competency.
We vacate the district court’s stay order and remand with
instructions.

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I
In 2008, Davis brought a § 1983 action in federal court
against prison officials at California State Prison,
Sacramento. Davis alleged that, in retaliation for filing
numerous lawsuits and prisoner complaints, prison officials
forced him to push a cart containing over 100 pounds of legal
documents for over half a mile while handcuffed. Davis
contended that when he sought medical help for his resulting
injuries, prison medical staff were deliberately indifferent by
denying him treatment. After 28 U.S.C. § 1915A(a)
screening, the district court determined that Davis’s
complaint stated cognizable claims for excessive force,
deliberate indifference to medical needs, and retaliation.
In 2010, Davis filed a second action against prison
medical staff in which he alleged that the staff, in retaliation
for Davis’s numerous inmate appeals, denied him adequate
medical care by leaving a pin in his left hand after surgery.
The district court screened that complaint and found that it
stated a cognizable claim under the First and Eighth
Amendments. In September 2011, Davis filed a motion for
a preliminary injunction to enjoin the prison medical staff
from denying him adequate medical care.
In both actions, Davis filed numerous motions for
appointment of a guardian ad litem or appointment of
counsel.1 In support of his motions, Davis submitted a

1
In Davis’s first § 1983 action, Davis filed motions for assignment of
counsel or appointment of a guardian ad litem in September 2010 and July
2011. The September 2010 motion was construed as a motion for
appointment of counsel under 28 U.S.C. § 1915(e)(1), which was denied
by the magistrate judge, who cited a lack of extraordinary circumstances.

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declaration from California Department of Corrections
psychiatrist Dr. W. White, who treated Davis and diagnosed
him as suffering from schizoaffective disorder (bipolar type),
impulse control disorder, and substance-related mental
disorder. Dr. White found that Davis had a history of
hallucinations, delusions, and mood episodes, including
mania, and that Davis posed a danger to himself. Davis also
submitted evidence that he has been under court-ordered
long-term involuntary medication pursuant to Keyhea v.
Rushen, 223 Cal. Rptr. 746 (Cal. Ct. App. 1986), since April
2007.2 Davis submitted an involuntary medication order from
an administrative law judge in effect from February 9, 2011,
to August 8, 2011. This order was extended by the
administrative law judge through January 30, 2012.
At the same time Davis’s two § 1983 actions were
pending in the Eastern District of California, Davis was
pursuing habeas relief in the Central District from a prior
criminal conviction. In his habeas action, Davis had been
evaluated by a court-appointed mental health specialist, who

The magistrate judge did not address Davis’s alternative request for
appointment of a guardian ad litem.
In Davis’s second action, Davis filed motions for assignment of
counsel or appointment of a guardian ad litem in September 2010, August
2011, and February 2012. The motions filed in September 2010 and
August 2011 were also construed as motions for appointment of counsel
and were denied. The magistrate judge again did not address Davis’s
alternative request for appointment of a guardian ad litem.
2
A Keyhea order permits the long-term involuntary medication of an
inmate upon a court finding that the course of involuntary medication is
recommended and that the prisoner, as a result of mental disorder, is
gravely disabled and incompetent to refuse medication, or is a danger to
himself or others. See Keyhea, 223 Cal. Rptr. at 755–56.

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found him to be incompetent. The district court there
appointed a guardian ad litem and found that Davis “does not
have the ability to consult with his lawyer with a reasonable
degree of rational understanding and does not have a rational
nor factual understanding of the proceedings against him.”
In October 2011, Davis’s first § 1983 action was
reassigned to the same magistrate judge and district court
judge before whom the second action was pending. In
February 2012, the magistrate judge addressed Davis’s
outstanding July 2011 request for a guardian ad litem or
counsel.
The magistrate judge recognized that Davis had been
found incompetent in his pending federal habeas proceeding
and was currently receiving long-term involuntary
psychotropic medication as directed by the state court order.
After referencing Rule 17(c), the magistrate judge noted that
the court was not required to appoint a guardian ad litem if it
found that Davis’s interests were otherwise adequately
protected. The report and recommendation concluded:
This court has been advised by the ADR and
Pro Bono Coordinator for the Eastern District
of California that there is no individual
available to serve as guardian ad litem for
plaintiff, or to undertake the representation of
plaintiff in this action. Plaintiff’s motion for
appointment of a guardian ad litem and/or

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appointment of counsel must therefore be
denied.3

The magistrate judge recommended that “the most
appropriate available measure” to adequately protect Davis
was “to stay the cases until any party thereto provides
evidence that plaintiff has been restored to competency and
is capable of protecting his own interests through selfrepresentation[.]” The magistrate judge then denied all
pending motions in both cases without prejudice.
In April 2012, after conducting a de novo review of the
case, the district court adopted the magistrate judge’s findings
and recommendations in full. The district court concluded
that Rule 17(c) required the court to either appoint a guardian
ad litem or issue another appropriate order, and “[t]he present
order staying the above-captioned matters is such an
appropriate order.” The district court stayed both of Davis’s
cases until “a motion to lift the stay accompanied by evidence
that plaintiff has been found to be restored to competency”
was filed. The district court then administratively closed
Davis’s cases, which removed Davis’s cases from the district
court’s active docket. Davis filed a timely appeal, and a
separate panel of our court appointed Davis pro bono counsel4
to address whether, in light of Rule 17(c), the district court

3

Other than briefly mentioning Davis’s alternative request for
appointment of counsel, the magistrate judge did not discuss whether
appointment of counsel was appropriate.
4

The court commends appellate pro bono counsel for agreeing to take
on this representation given the difficulty of representing an incompetent
litigant.

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erred by declining to appoint a guardian ad litem and instead
indefinitely staying Davis’s cases.5
II
Before reaching the merits, we first consider whether we
have jurisdiction under 28 U.S.C. § 1291 to review the
propriety of the district court’s stay order. Ordinarily, a stay
order is not an appealable final decision. Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 n.11
(1983). However, because the already lengthy and indefinite
stay puts Davis “effectively out of court,” the stay order on
these facts “amounts to a dismissal of the suit” and is
reviewable as a final decision under § 1291. Id. at 10.
Alternatively, the order is appealable within the interpretation
of the finality rule articulated in Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541 (1949), which
recognized that § 1291’s reference to “final decisions”
includes certain interlocutory orders that “finally determine
claims of right separable from, and collateral to, rights
asserted in the action[.]” Id. at 546. We explain both
conclusions more fully in the sections that follow.
A
The district court’s stay order is an appealable final
decision under the Moses H. Cone doctrine. There, a hospital
brought suit in state court against a contractor seeking a

5
Davis also appealed the district court’s denial of his motion for a
preliminary injunction. However, after obtaining pro bono counsel, Davis
conceded in his Reply Brief that he no longer challenges the denial of the
motion for a preliminary injunction. Therefore, we do not address that
issue.

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declaratory judgment that there was no right to arbitration
under the contract. 460 U.S. at 7. The contractor then sought
an order in federal court to compel arbitration under the
Federal Arbitration Act. Id. The district court stayed the
federal action pending resolution of the arbitration question
in state court. Id. The Supreme Court concluded that the
district court’s stay order was appealable under § 1291 since
the stay order effectively amounted to a dismissal of the
federal action—as a result of the stay, there would be “no
further litigation in the federal forum,” and the state court’s
judgment on the arbitration issue would result in res judicata
as to future claims. Id. at 10. Because the state court
proceedings would moot the arbitration issue in federal court
such that the plaintiff was “effectively out of court,” the
Court concluded that the stay order was immediately
appealable. Id.
We extended the Moses H. Cone doctrine in Blue Cross
& Blue Shield of Alabama v. Unity Outpatient Surgery
Center, Inc., 490 F.3d 718 (9th Cir. 2007), to allow the
immediate appeal of a stay order that “impose[s] lengthy or
indefinite delays,” even absent a res judicata risk. Id. at 723.
In Blue Cross, an insurance company brought a civil suit in
federal court, alleging that the defendants and their associates
had enticed patients to undergo unnecessary treatments, billed
Blue Cross for the procedures, and collected millions of
dollars in reimbursement from Blue Cross. Id. Several
defendants facing serious risk of criminal prosecution
requested stays of the civil suits on the basis that discovery in
the civil suit implicated their Fifth Amendment rights. Id.
The district court granted the stays, and we found jurisdiction
to consider their propriety. Noting that the exact length of the
stays was unknown but “could easily last as long as the five-

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or six-year limitations period in the criminal cases,” we
concluded:
[L]engthy and indefinite stays place a plaintiff
effectively out of court. Such an indefinite
delay amounts to a refusal to proceed to a
disposition on the merits. Even if litigation
may eventually resume, such stays create a
danger of denying justice by delay. Delay
inherently increases the risk that witnesses’
memories will fade and evidence will become
stale.
Id. at 724 (internal citations and quotations omitted). In Blue
Cross, each of the stays had lasted far longer than the 18month delays that other courts had considered sufficient to
place the plaintiffs effectively out of court. Id. (citing Am.
Mfrs. Mut. Ins. Co. v. Edward D. Stone, Jr. & Assocs.,
743 F.2d 1519, 1524 (11th Cir. 1984); Hines v. D’Artois,
531 F.2d 726, 732 (5th Cir. 1976)). On this basis, we
concluded that jurisdiction was proper under § 1291. Id.
Relying on Blue Cross, we conclude that the stay in this
case is both lengthy and indefinite, if not infinite. Davis has
been involuntarily medicated since March 2007 and is still
unable to provide reasoned and informed consent to accept or
refuse treatment. More importantly, Davis has been found
incompetent, and there is no indication from the record that
Davis will ever regain the competency needed to lift the stay
order. See Lockyer v. Mirant Corp., 398 F.3d 1098, 1102 (9th
Cir. 2005) (noting that “absolute certainty is not required in
order to put a party ‘effectively out of court’ within the
meaning of the Moses H. Cone doctrine”). Finally, the
district court’s stay order, entered in April 2012, has already

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lasted longer than the 18-month delay we deemed sufficient
for review in Blue Cross. See 490 F.3d at 724. Because the
“lengthy and indefinite” stay puts Davis “effectively out of
court,” we have jurisdiction under § 1291. Id.
B
Even if the district court’s stay order were not appealable
under the Moses H. Cone doctrine, as developed in Blue
Cross, it would nevertheless be appealable within the
interpretation of the finality rule under Cohen, 337 U.S. at
546. To fall within the small class of collateral orders that
may be immediately appealed under Cohen, the order must
(1) conclusively determine the disputed question, (2) resolve
an important issue completely separate from the merits of the
action, and (3) be effectively unreviewable on appeal from a
final judgment. Coopers & Lybrand v. Livesay, 437 U.S.
463, 468 (1978). The Cohen criteria are satisfied here.
In Moses H. Cone, the Court determined that the stay
order conclusively determined the disputed question because,
although the stay was technically open to reconsideration,
“there [was] no basis to suppose that the District Judge
contemplated any reconsideration of his decision[.]”
460 U.S. at 12–13. The stay order in this case forecloses both
of Davis’s § 1983 actions from proceeding until he is restored
to competency and can represent himself. Although the
district court’s stay order could theoretically be modified, the
court did not impose a time limit on the stay or indicate any
circumstances that might trigger modification. See Lockyer,
398 F.3d at 1103; Dependable Highway Exp., Inc. v.
Navigators Ins. Co., 498 F.3d 1059, 1065 (9th Cir. 2007).
Instead, the court administratively closed Davis’s cases and
removed them from the court’s active docket. The terms of

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the stay are absolute—unless and until Davis is found
competent, his § 1983 actions will not proceed.
Cohen’s second criterion, that the order resolves an
important issue that is completely separate from the merits,
is also satisfied. Here, the district court’s order “amounts to
a refusal to adjudicate the merits” of Davis’s § 1983 actions.
Moses H. Cone, 460 U.S. at 12. This circumstance “plainly
presents an important issue separate from the merits.” Id.
The particular circumstances of this stay also satisfy
Cohen’s third criterion because the propriety of the stay will
be effectively unreviewable on appeal from a final judgment.
Lockyer, 398 F.3d at 1104. Most likely, there will never be
a final order entered because Davis will never regain
competency, and thus the stay order has effectively ended the
litigation. And even if Davis regains competency, the stay
will be lifted and the suit will proceed, “rendering review of
the stay impossible.” Dependable Highway Exp., Inc.,
498 F.3d at 1065 (citing Lockyer, 398 F.3d at 1104).
Therefore, the district court’s stay order is reviewable as a
collateral order under Cohen.
III
The decision to appoint a guardian ad litem under Rule
17(c) is normally left to the sound discretion of the trial court
and is reviewed only for abuse of discretion.6 See United

6
Davis contends that we should review the district court’s decision de
novo because, as in 30.64 Acres of Land, the district court “failed in its
legal duty to inquire into [Davis’s] circumstances and to exercise its
discretion.” 30.64 Acres of Land, 795 F.2d at 804. We find 30.64 Acres
of Land distinguishable. There, although the defendant claimed to be

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States v. 30.64 Acres of Land, More or Less, 795 F.2d 796,
804 (9th Cir. 1986). Likewise, the district court’s imposition
of a stay order is reviewed for abuse of discretion.
Dependable Highway Exp., Inc., 498 F.3d at 1066. First, we
consider whether the district court identified the correct legal
standard. Second, we determine whether the district court’s
findings of fact, and its application of those findings of fact
to the correct legal standard, were illogical, implausible, or
without support in inferences that may be drawn from facts in
the record. United States v. Hinkson, 585 F.3d 1247, 1251
(9th Cir. 2009) (en banc).
IV
The purpose of Rule 17(c) is to protect an incompetent
person’s interests in prosecuting or defending a lawsuit. See
Gardner ex rel. Gardner v. Parson, 874 F.2d 131, 140 (3d
Cir. 1989). Once the court determines that a pro se litigant is
incompetent, the court generally should appoint a guardian ad
litem under Rule 17(c). But the Rule does not make such an
appointment mandatory. If another order would sufficiently
protect the incompetent person’s interests in the litigation in
lieu of a guardian, the court may enter such an order. See
30.64 Acres, 795 F.2d at 805; Adelman ex rel. Adelman v.
Graves, 747 F.2d 986, 989 (5th Cir. 1984). Although the

incompetent and his claim was made credible by official documentation,
the district court completely failed to consider whether Rule 17(c) applied.
We concluded that Rule 17(c) imposes on the district court a legal
obligation to consider whether an incompetent litigant is adequately
protected. Id. at 805. Therefore, we viewed the district court’s complete
failure to consider Rule 17(c) as “a failure to exercise legally required
discretion,” reviewable de novo. Id. Here, because the district court did
consider the applicability of Rule 17(c), we review the district court’s
decision for an abuse of discretion.

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district court has discretion to craft an appropriate remedy to
protect the incompetent person, the court may not use the
Rule as a vehicle for dismissing claims or for allowing the
interests of an incompetent litigant to go completely
unprotected. Gardner, 874 F.2d at 140.
Here, after the district court was informed that no one was
available to serve as a guardian ad litem, it determined that
the most appropriate remedy to protect Davis’s interests was
to stay both of Davis’s § 1983 actions, to be lifted only upon
a finding that Davis was competent and able to represent
himself pro se. Given Davis’s circumstances, this stay order
left his interests in the litigation completely unprotected and
functionally operated as a dismissal with prejudice of Davis’s
actions, contrary to Rule 17(c)’s mandate that the court
“protect [an] incompetent person who is unrepresented in an
action.” Fed. R. Civ. P. 17(c)(2). Davis’s long history of
mental illness and numerous involuntary medication orders,
combined with Dr. White’s psychiatric report and the federal
habeas court’s finding of incompetency, were sufficient to put
the district court on notice that Davis is incompetent and that
he shows no signs of regaining competency in the future.
Even if Davis were one day restored to competency such that
he could represent himself pro se, his ability to litigate his
§ 1983 actions would be substantially prejudiced through
delay, as witnesses’ memories fade and evidence becomes
stale. See Blue Cross, 490 F.3d at 724. Instead of satisfying
the obligation created by Rule 17(c) to ensure that Davis’s
interests in the litigation would be adequately protected, the
district court closed the courthouse doors, aware of the strong
probability that Davis would not soon return. The district
court’s order was thus not an “appropriate order” to fulfill its
mandate to protect Davis’s interests. Fed. R. Civ. P. 17(c)(2).

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We are sensitive to the limited supply of individuals
willing to represent clients like Davis and we readily
acknowledge that this placed the district court in a difficult
predicament. Nonetheless, in addition to consulting with its
Pro Bono Coordinator, the court could have “sought counsel,
made inquiry of the bar associations, or inquired as to
whether law schools that may have clinical programs or
senior centers with social workers would be willing to
undertake the necessary representation.” Powell v. Symons,
680 F.3d 301, 308 (3d Cir. 2012). If no suitable guardian was
found, the court could have placed Davis on a waiting list for
guardian ad litem services or provided Davis the opportunity
to renew his motion if he or the court identified a suitable
individual willing to serve as guardian. If the court
determined that a stay order was still an appropriate solution,
the court might have engaged in periodic case management
conferences to reassess Davis’s competency or monitor his
search for a guardian. Alternatively, the court could have
appointed counsel pursuant to 28 U.S.C. § 1915(e)(1), which
would have likely been sufficient. See Krain v. Smallwood,
880 F.2d 1119, 1121 (9th Cir. 1989). This list is not
exhaustive—the district court had many options available that
would have adequately protected Davis’s interests and
satisfied the court’s obligations under Rule 17(c). Instead,
the terms of the order completely deprived Davis of a
guardian until he was “found to be restored to competency,”
at which point Davis would no longer need the services of a
guardian to protect him.
We read Rule 17(c) to require a district court to “take
whatever measures it deems proper to protect an incompetent
person during litigation.” 30.64 Acres, 795 F.2d at 805.
Under these circumstances, we conclude that the district court
abused its discretion by staying Davis’s cases until he is

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found competent (if ever). Such a stay order fails to
adequately protect Davis’s interests and thus does not
constitute “another appropriate order” under Rule 17(c).
Instead, it amounts to a dismissal with prejudice of Davis’s
actions. We therefore vacate the district court’s order and
remand to the district court for action consistent with this
opinion. On remand, the district court is directed to consider
whether it should appoint a guardian ad litem for Davis
pursuant to Rule 17(c).7 If the district court declines to
appoint a guardian, it should heed the advice herein, and craft
an appropriate order designed to protect Davis’s interests.
VACATED AND REMANDED, with instructions.
Each party shall bear its own costs.

7

The district court is welcome to contact this court’s Pro Se Unit
Supervising Attorney for assistance in locating someone outside the
Eastern District of California who would be willing to accept the
appointment.