Zolnierz v. Arpaio et al

Filing 209

ORDER re 185 MOTION for Summary Judgment: Competency Hearing set for 1/18/2013 at 09:00 AM in Courtroom 602, 401 West Washington Street, Phoenix, AZ 85003 before Judge G Murray Snow. IT IS FURTHER ORDERED that Andrew Jacobs of Snell & Wilmer appear telephonically at the hearing for purposes of potentially securing counsel. The Clerk of Court is directed to mail a copy of this order to Mr. Jacobs at One South Church Avenue, Suite 1500, Tucson, AZ 85701-1630. Mr. Jacobs is directed to call chambers at [phone] five minutes before the scheduled hearing. (See document for further details). Signed by Judge G Murray Snow on 1/7/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Douglas John Zolnierz
Plaintiff,

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ORDER

v.

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No. CV-11-00146-PHX-GMS

Joseph Arpaio, Sheriff of Maricopa, et al.

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Defendants.

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Pending before the Court are two dispositive motions filed by the only remaining

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Defendant in this case, Dr. Sudha D. Roa: a Motion to Dismiss for Lack of Prosecution

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(Doc. 160) and a Motion for Summary Judgment (Doc. 185). Plaintiff pro se Douglas

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Zolnierz has filed a number of motions that address his attempts to produce evidence to

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defeat those motions: a Motion to Appoint Expert (Doc. 108), Motion to Defer Summary

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Judgment (Doc. 110), Motion for Evidentiary Hearing (Doc. 182), Motion for In Camera

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Inspection Order (Doc. 191), Motion to Compel (Doc. 192), Motion to Strike (Doc. 194),

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and Motion for Ruling (Doc. 201). Most of these motions were filed after the expiration

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of the Court’s discovery deadline of September 28, 2012. (Doc. 77 ¶ 1.) Zolnierz has not

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filed a Response to Roa’s Motion for Summary Judgment, but has filed two Motions for

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Extension of Time to File Judgment on the Pleadings and Summary Judgment. (Docs.

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202, 204.) The Court has taken all of these motions under consideration, but does not

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issue a ruling at this time for the reasons described below.

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In the course of its examination of Dr. Rao’s case dispositive motions, the Court

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has come across evidence that raises a serious question about Zolnierz’s competence that

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is not inconsistent with some of Zolnierz’s behaviors in this action. Pursuant to Federal
Rule of Civil Procedure 17(c)(2), the Court orders that a hearing on the issue of
Zolnierz’s competence to prosecute this action will be held on Friday, January 18, 2013,
at 9:00 a.m.
DISCUSSION

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Rule 17(c)(2) requires a court to “appoint a guardian ad litem—or issue another
appropriate order—to protect a minor or incompetent person who is unrepresented in an
action.” The precise standard that governs this determination is not entirely clear. For
instance, the Second and Third Circuits have held that the district court has a duty to
inquire into a pro se litigant’s competency when “there is some verifiable evidence of
incompetence.” Powell v. Symons, 680 F.3d 301, 307 (3d Cir. 2012); Ferrelli v. River
Manor Health Care Ctr., 323 F.3d 196, 201 (2d Cir. 2003). Verifiable evidence consists
of “evidence from an appropriate court of record or a relevant public agency indicating
that the party had been adjudicated incompetent” or “evidence from a mental health
professional demonstrating that the party is being or has been treated for mental illness of
the type that would render him or her legally incompetent.” Ferrelli, 323 F.3d at 201. In
one of the cases under consideration in Powell, there was a court finding in a criminal
case that the plaintiff was incompetent to stand trial. 608 F.3d at 308. In the other, a letter
from the plaintiff's doctor stating that plaintiff was not competent to stand trial. Id. at 310.
Both pieces of evidence triggered an obligation for the court to at least inquire into the
plaintiff's competency.
Powell and Ferrelli distinguished “verifiable evidence” from “a litigant's bizarre
behavior.” Id. at 307; Ferrelli, 323 F.3d at 201. The Ferrelli court specifically rejected a
“substantial question” standard, where a plaintiff's “requests for counsel, coupled with
her in-court statements, raised a substantial question regarding her mental competency . .
. sufficient to trigger the district court's obligation to determine whether Rule 17(c)
protection was warranted.” Id. The Second Circuit stated that “[n]either the language of
Rule 17(c) nor the precedent of this court or other circuits imposes upon district judges an

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obligation to inquire sua sponte into a pro se plaintiff's mental competence, even when
the judge observes behavior that may suggest mental incapacity.” Id.
The Ninth Circuit has not spoken as clearly as the Second and Third in adopting a
“verifiable evidence” standard. In fact, a recent case used the language of “substantial
question” to describe the trigger point for a district court's obligation to determine
competency; however, the actual application of the standard in that case roughly
approximates “verifiable evidence” standard, though it appears less is required. In Allen
v. Calderon, 408 F.3d 1150 (9th Cir. 2005), the Ninth Circuit stated that “when a
substantial question exists regarding the mental competence of a party proceeding pro se,
the proper procedure is for the district court to conduct a hearing to determine
competence, so a guardian ad litem can be appointed, if necessary.” Id. at 1153. The
Ninth Circuit found “sufficient evidence of incompetence at least to require the district
court to make a competency determination” where

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[t]he motion included [plaintiff’s] own sworn declaration and a sworn declaration
of another inmate [that] explain that [plaintiff] is mentally ill and does not
understand the district court’s orders. [Plaintiff] also attached a letter from the
prison psychiatrist whose care he is under . . . . This letter states that [plaintiff] is
diagnosed with Chronic Undifferentiated Schizophrenia and is taking two
psychotropic medications.

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Id. Requiring some documentary evidence from physicians is consistent with an older

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Ninth Circuit case, which held that the district court abused its discretion because “the

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court was clearly on notice that [plaintiff] claimed to be incompetent and his claim was

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made credible by official documentation.” United States v. 30.64 Acres of Land, 795 F.2d

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796, 805 (9th Cir. 1986) (emphasis added).

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Up until this point, Zolnierz had failed to put forward official documentation of his

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mental problems to satisfy the Rule 17 standard. The documents he attached to his

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Motion for Appointment of Counsel do not contain any physician diagnoses or

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commentary. The discovery hearings held in September similarly lacked verifiable

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evidence. Zolnierz insisted over and over that “my mental competency’s in issue,” (Doc.

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173, 9/20/12 Hearing Trans., at 4:2), but he did not put forth any evidence from a
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physician. At the September 20 hearing, he had his case worker doctor, Aaron Morgan,
with him. Morgan, though, represented only that Zolnierz was on appropriate prescribed
medication. (Id. at 10:17-25.) He did not comment or present any evidence that he found
Zolnierz mentally unstable or unfit to stand trial—the evidence that has triggered the
Rule 17 obligation in the case law.
Rao, however, attached several documents to his Motion for Summary Judgment
that do raise a “substantial question . . . regarding the mental competence of [the] party
proceeding pro se.” Allen, 408 F.3d at 1153. First, county doctors contacted his provider,
Magellan Health Services of Arizona, who reported that Zolnierz has schizoaffective
disorder, and paranoid personality disorder. (Doc. 186-7 at 21-22; Doc. 186-8 at 1.) The
January 20, 2009 report lists the following symptoms: paranoia, persecutory ideations,
auditory hallucinations, manic episodes, depression, pressured speech, racing thoughts,
little sleep, and mood liability. (Id.) It also states that, when feeling well, he is largely
able to present himself in an appropriate manner, but that he fails to attend scheduled
appointments. (Id.)
Second, the County Correctional Health Services physicians’ notes show
increasing irregularities. On May 18, 2009, the doctor made a note that “psychotic
features are become more evident and problematic.” (Doc. 186-5 at 19-20; Doc. 186-6 at
1.) Most importantly, the June 22, 2009 report states that the
patient presents a challenging array of medical, mental, and interpersonal
problems. He can be demanding at times, and sometimes possibly stubborn. This
writer wonders if there are signs of Dementia. He has a substantial mental health
history that places him at risk (additional risk) when considering his latest request
for . . . treatment of Hepatitis C. If indeed the patient wishes to pursue treatment
such products . . . [are] agents with significant documented risks of severe
depression and suicide, [which] in this writer’s opinion should be take an
antidepressant. The patient must show commitment to health care at this facility,
for example, at least 6 weeks of continuous cooperative alliance with treatment
provider. Keep in mind the patient was considered not competent to stand trial
without training and treatment. Is he competent to decide his medical care?
Perhaps his family and attorney should be involved with discussions around the
appropriateness and safety of medical options for Hepatitis.

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(Id.) (emphasis added). Chief among the troubling signs is that Zolnierz apparently was
considered not competent to stand trial at some point.
Finally, the CHS records indicate that Zolnierz was placed on suicide watch at the
CHS psychiatric unit on January 21-24, 2009. (Doc. 186-4 at 3-7.)
Taken together, these three pieces of evidence are sufficient to trigger the duty to
have a Rule 17 competency hearing. The evidence is similar to that presented in Allen,
where the plaintiff “had a letter from the prison psychiatrist whose care he is under . . . .
This letter states that [plaintiff] is diagnosed with Chronic Undifferentiated Schizophrenia
and is taking two psychotropic medications.” 408 F.3d at 1153. While the Court is
expressing no opinion on the actual determination of whether Zolnierz is competent to
pursue his case, sufficient evidence has presented to require a competency hearing.
CONCLUSION
The materials attached to Roa’s Motion for Summary Judgment include medical
evidence that Zolnierz may not be competent to advance his case. Under Rule 17(c)(2),
the Court’s duty is to conduct a hearing on the issue of Zolnierz’s competency.
IT IS THEREFORE ORDERED that the parties shall appear at a competency
hearing on Friday, January 18, 2013, at 9:00 a.m. in Courtroom 602 at the Sandra Day
O’Connor U.S. Courthouse in Phoenix, Arizona, where they will present evidence on
whether Zolnierz is competent to prosecute his case.
IT IS FURTHER ORDERED that Andrew Jacobs of Snell & Wilmer appear
telephonically at the hearing for purposes of potentially securing counsel. The Clerk of
Court is directed to mail a copy of this order to Mr. Jacobs at One South Church Avenue,
Suite 1500, Tucson, AZ 85701-1630. Mr. Jacobs is directed to call chambers at (602)
322-7650 five minutes before the scheduled hearing.
Dated this 7th day of January, 2013.

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