Dillingham v. Emerson
Filing
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ORDER DENYING Plaintiff's Fourth 74 Motion for Appointment of Counsel, without Prejudice, and Denying Request for Appointment of Guardian Ad Litem signed by Magistrate Judge Stanley A. Boone on 06/12/2020. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JERRY DILLINGHAM,
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Plaintiff,
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v.
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N. EMERSON, et al.,
Case No. 1:18-cv-00507-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S FOURTH
MOTION FOR APPOINTMENT OF
COUNSEL, WITHOUT PREJUDICE, AND
DENYING REQUEST FOR APPOINTMENT
OF GUARDIAN AD LITEM
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Defendants.
[ECF No. 74]
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Plaintiff Jerry Dillingham is a state prisoner proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s fourth request for appointment of counsel and/or
guardian ad litem, filed on June 11, 2020.
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As Plaintiff was previously advised, he does not have a constitutional right to appointed
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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot
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require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United
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States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in
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certain exceptional circumstances the Court may request the voluntary assistance of counsel
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pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing
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and compensating counsel, the court will seek volunteer counsel only in the most serious and
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exceptional cases. In determining whether “exceptional circumstances exist, the district court must
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evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate
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his claims pro se in light of the complexity of the legal issues involved.” Id. (internal quotation
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marks and citations omitted).
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In the present case, the Court does not find the required exceptional circumstances. As with
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Plaintiff’s prior motions for appointment of counsel, he contends that he is unable to litigate this
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action because he is illiterate, has mental disabilities, requires the assistance of another inmate to
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draft his documents, and is in the disability placement program. However, the Court does not find
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the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed in the
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law and that he has made serious allegations which, if proved, would entitle him to relief, his case
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is not exceptional. Circumstances common to most prisoners, such as a lack of education or limited
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law library access, do not alone establish exceptional circumstances that would warrant a request
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for voluntary assistance of counsel. The legal issues present in this action are not complex. Further,
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Defendants just filed an answer in this case, and at this early stage of the proceedings, the Court
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cannot find that Plaintiff is likely to succeed on the merits. Further, there is no indication from the
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record that Plaintiff has been unable to adequately articulate claims and prosecute this action—
Accordingly, Plaintiff’s fourth motion for the
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whether alone or with inmate assistance.
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appointment of counsel shall be denied, without prejudice.
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With regard to Plaintiff’s request for appointment of a guardian ad litem, Federal Rule of
Civil Procedure 17(c), provides in pertinent part:
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.
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Fed. R. Civ. P. 17(c)(2). The Ninth Circuit has held that when “a substantial evidence” exists
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regarding the mental incompetence of a pro se litigant, the district court should conduct a hearing
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to determine competence so that a guardian ad litem may be appointed if appropriate. Allen v.
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Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005); Krain v. Smallwood, 880 F.2d 1119, 1121 (9th
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Cir. 1989). The Ninth Circuit has not clearly stated what constitutes “substantial evidence” of
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incompetence warranting such a hearing. See Hoang Minh Tran v. Gore, No. 10cv464-GPC
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(DHB), 2013 WL 1625418, at *3 (S.D. Cal. Apr. 15, 2013). However, the Ninth Circuit has
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indicated that sworn declarations from the allegedly incompetent litigant, sworn declarations or
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letters from treating psychiatrists or psychologist, and medical records may be considered in this
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regard. See Allen, 408 F.3d at 1152-54. Such evidence must speak to the court’s concern as to
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whether the person in question is able to meaningfully take part in the proceedings. See AT&T
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Mobility, LLC v. Yeager, 143 F.Supp.3d 1042, 1050 (E.D. Cal. 2015) (citing In re Christina B.,
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19 Cal.App.4th 1441, 1450 (1993)).
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As stated above, Plaintiff contends that he is unable to litigate this action because he is
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illiterate, has mental disabilities, requires the assistance of another inmate to draft his documents,
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and is in the disability placement program. Plaintiff has not submitted substantial evidence of
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incompetence. At most, Plaintiff’s evidence shows that he has a low TABE score, and that he
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requires effective communication by prison officials. (ECF No. 74, pp. 5, 8). In addition,
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Plaintiff’s interest in this case appears to be adequately protected, as he has been actively
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litigating this case with the assistance of other inmates. Accordingly, the Court finds that in the
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absence of verifiable evidence of incompetence, there is no substantial question regarding
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Plaintiff’s competence and therefore no duty of inquiry. Saddozai v. Spencer, No. 18-04511 BLF
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(PR), 2019 WL 6838701, at *2 (N.D. Cal. Dec. 16, 2019), reconsideration denied, (N.D. Cal.
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Apr. 16, 2020) (citing see Allen, 408 F.3d at 1152; Ferrelli v. River Manor Health Care Center,
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323 F.3d 196, 201-02 (2d Cir. 2003)). Therefore, Plaintiff does not warrant appointment of a
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guardian ad litem under Rule 17(c), and his request shall be denied.
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Based on the foregoing, it is HEREBY ORDERED that:
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1.
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Plaintiff’s fourth motion for appointment of counsel is denied, without prejudice;
and
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2.
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Plaintiff’s motion for appointment of a guardian ad litem under Rule 17(c) is
denied.
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IT IS SO ORDERED.
Dated:
June 12, 2020
UNITED STATES MAGISTRATE JUDGE
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