Hollis v. Bal et al

Filing 195

ORDER signed by Magistrate Judge Jeremy D. Peterson on 8/11/2023 DENYING 192 Motion to Appoint Counsel and for guardian ad Litem without prejudice. (Clemente Licea, O)

Case 2:13-cv-02145-MCE-JDP Document 195 Filed 08/14/23 Page 1 of 7
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARVIN GLENN HOLLIS,

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No. 2:13-cv-02145-MCE-JDP (PC)

Plaintiff,
v.

ORDER

J. BAL, et al.,
Defendants.

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Plaintiff argues in a renewed motion for either the appointment of counsel or a guardian

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ad litem that he is incompetent and has been prescribed psychotropic and other mental health

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medication. ECF No. 192. Plaintiff claims that these medications affect his brain, memory,

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judgment, and cause him “to be unable to adequately represent [him]self.” Id. For the following

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reasons, the court denies plaintiff’s motion.

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Guardian ad Litem

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Pursuant to Federal Rule of Civil Procedure 17(c)(2), courts are required to “appoint a

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guardian ad litem—or issue another appropriate order—to protect . . . [an] incompetent person

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who is unrepresented in an action.” A person’s capacity to sue is measured by the standard of the

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law of his domicile, Fed. R. Civ. P. 17(b)(1)—here, California. “In California, a party is

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incompetent if he or she lacks the capacity to understand the nature or consequences of the

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proceeding, or is unable to assist counsel in the preparation of the case.” Golden Gate Way, LLC
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Case 2:13-cv-02145-MCE-JDP Document 195 Filed 08/14/23 Page 2 of 7
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v. Stewart, 2012 WL 4482053, at *2 (N.D. Cal. Sept. 28, 2012) (citing In re Jessica G., 93 Cal.

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App. 4th 1180, 1186 (2001); Cal. Civ. Proc. Code § 372; and In re Sara D., 87 Cal. App. 4th 661,

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666-67 (2001)).

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The procedure of 17(c)(2) is straightforward. If the court has “substantial questions”

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about an individual’s competency or is presented with “substantial evidence” indicating that an

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individual may be incompetent, the court should hold a competency hearing. See Allen v.

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Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005) (“A party proceeding pro se in a civil lawsuit is

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entitled to a competency determination when substantial evidence of incompetence is

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presented.”); Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (“The preferred procedure

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when a substantial question exists regarding the mental competence of a party proceeding pro se

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is for the district court to conduct a hearing to determine whether or not the party is competent, so

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that a representative may be appointed if needed.”). In determining whether a party has provided

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“substantial evidence” of incompetence, a court may consider declarations from that party, a lay

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non-party, and a healthcare professional, as well as the party’s submitted medical records. See

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Allen, 408 F.3d at 1152; Perry v. Unknown Defendant(s), No. cv 6:16-MC-00453-MC, 2017 WL

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6940702, at *2 (D. Or. Oct. 27, 2017) (“Despite this diversity of potential evidentiary sources, the

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Ninth Circuit has treated documentation of a party’s medical condition as the hallmark

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‘substantial evidence.’”). If the court makes a finding that the individual is incompetent after a

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hearing, then the court has the authority to appoint a guardian ad litem. See Davis v. Walker, 745

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F.3d 1303, 1310 (9th Cir. 2014) (“Once the court determines that a pro se litigant is incompetent,

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the court generally should appoint a guardian ad litem under Rule 17(c). But the Rule does not

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make such an appointment mandatory.”).

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In support of plaintiff’s motion, he includes two declarations—one from a fellow prisoner,

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Joseph Ware, and one from himself—and a single-page form titled “Statewide Psychotropic

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Medication Consent Form.”1 Ware attests that he has assisted plaintiff with drafting his motions

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Plaintiff’s declaration was filed with his previous request for the appointment of counsel
or a guardian ad litem, but the court will again consider it in resolving the pending motion. ECF
No. 185.
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Case 2:13-cv-02145-MCE-JDP Document 195 Filed 08/14/23 Page 3 of 7
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and pleadings in this case. ECF No. 192 at 2-3. Ware claims that plaintiff told him that he is

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“behind in the case” and “on the verge of being kicked out of court or having his case dismissed

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for failure to prosecute.” Id. at 4. Plaintiff states in his own declaration that he is incompetent

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and that his medications prevent him from understanding the proceedings. ECF No. 185 at 6.

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In cases involving similar evidence, district courts have rejected requests for competency

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hearings. In Shack v. Knipp, the district court concluded that the petitioner had not provided

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“substantial evidence” of incompetence despite having produced the declaration of a fellow

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inmate and medical records reflecting a diagnosis of schizoaffective disorder. No. 12-cv-794-

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MMA, 2012 WL 4111652, at *5 (S.D. Cal. Sept. 17, 2012). The court discounted the inmate’s

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declaration “because he did not have the training to determine whether the petitioner could

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understand and respond to court orders,” and noted that the petitioner had failed to submit his

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own sworn declaration or to provide a letter from a treating psychiatrist. Id.

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In McElroy, the court found that the plaintiff had “submitted evidence of incompetence”

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and “was found by clear and convincing evidence to be gravely disabled and incompetent to

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refuse medication and he was involuntarily administered psychotropic medication for one year.”

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McElroy v. Cox, No. CIV. 08-1221-JM (AJB), 2009 WL 4895360, at *2-*3 (E.D. Cal. Dec. 11,

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2009). Notwithstanding this finding, the court found “no nexus between [the plaintiff’s] mental

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disorder and his ability to articulate his claims.” Id. at *3. The court determined that the

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plaintiff’s claim of mental illness was additionally undercut by the fact that his case had survived

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screening and that he had both successfully opposed the defendants’ motion to dismiss and filed

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two motions for appointment of counsel that had “clarity and the proper arguments.” Id.

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After reviewing the declarations, the court finds that neither plaintiff nor Ware’s lay

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statements raise substantial questions about plaintiff’s competency. See Hoang Minh Tran v.

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Gore, 2013 WL 1625418, *4 (S.D. Cal. Apr. 15, 2013) (declaration from former fellow inmate

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with no training or qualifications provided little substantial evidence to justify competency

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hearing); Johnson v. Gonzalez, No. 1:09-cv-01264-BAM PC., 2015 WL 1729794, at *3 (E.D.

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Cal. Apr. 15, 2015) (incompetency standard not met when the plaintiff submitted pro se

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declaration, declaration from cellmate who was not “qualified to assess [the plaintiff’s] mental
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competence or thinking processes,” medical records showing therapeutic dosages of psychotropic

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medications, and parole records showing that he was a “slow learner” who had not finished high

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school).
Plaintiff also asks the court to consider a “Statewide Psychotropic Medication Consent

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Form.” ECF No. 193 at 4. The form indicates that a doctor has prescribed plaintiff Geodon,

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Trileptal, Buspar, and Clonidine. Id. The form does not list a doctor, and the doctor’s signature

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space is blank. Id. The form also does not indicate that plaintiff suffers from either common or

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rare side effects from the medications.

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“Nothing in Rule 17 suggests that the mere fact of a mental disability raises a substantial

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question of mental incompetence.” Kuzmicki v. Hanrahan, No. 3:17-cv-00342-RCJV PC, 2018

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WL 2088745, at *3 (D. Nev. May 4, 2018) (citing United States v. 30.64 Acres of Land, 795 F.2d

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796, 805 (9th Cir. 1986)). Moreover, courts have found that records of mental disability are

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insufficient when they do not evidence a litigant’s inability “to comprehend or competently

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participate in court proceedings.” See Shack, 2012 WL 4111652, at *5 (medical records

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reflecting a diagnosis of schizoaffective disorder insufficient to raise substantial question as to

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capacity to sue, due in part to records being “outdated”); Thompson v. Virginia, No. 11-cv-2818-

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NLS, 2012 WL 1154473, at *2-3 (S.D. Cal. Apr. 4, 2012) (holding the petitioner failed to submit

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substantial evidence of incompetence because he did not provide medical records from the

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relevant time period and nothing indicated that he could not understand or respond to court

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orders). Instead, the Ninth Circuit has explained that a litigant presents substantial evidence of

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incompetency where the record “establish[es] that he suffers from a mental illness, the mental

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illness prevents him from being able to understand and respond to the court’s order, and he was

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still suffering from the illness during the relevant time period.” Allen, 408 F.3d at 1152 (9th Cir.

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2005).

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Plaintiff’s “Statewide Psychotropic Medication Consent Form” does not raise questions

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about his competency. The single-page form does not identify the dose or frequency of the

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medications listed, whether the medications are successful in abating plaintiff’s illness, whether

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plaintiff suffers from any side effects, or what mental illness affects plaintiff. Fundamentally, the
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form does not address whether plaintiff is able to take part in these proceedings and litigate this

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case. See Owens v. Clark, No. 2:15-cv-0982-TLN-KJN (P), 2017 WL 6539639, at *3 (E.D. Cal.

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Dec. 20, 2017) (“Plaintiff’s mental health records provide some evidence that he suffers from a

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mental health condition, but fail to show plaintiff lacks the ability to articulate his claims pro se.

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The names of the medications are written on a statewide psychotropic medication consent form

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which lists various possible side effects; plaintiff does not explain which side effects he suffers, if

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any, or how such side effects preclude his ability to prosecute this action, if they do.”); Johnson,

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2015 WL 1729794, at *3 (finding that a medical record showing that plaintiff took two 600 mg

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tablets of Gabapentin three times a day and two 300 mg tablets of Oxcarbazepine every morning

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did not support a finding of incompetency since the records “merely provide[d] evidence of the

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frequency, amount and type of medication that Plaintiff [was] currently taking”).

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Plaintiff cites two cases in support of his motion: Davis v. Walker, 745 F.3d 1303 (9th Cir.

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2014) and AT&T Mobility, LLC v. Yeager, 143 F. Supp. 3d. 1042 (E.D. Cal. 2015). ECF No. 192

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at 2. Neither case supports his position. In Davis, the Ninth Circuit concluded that the district

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court abused its discretion by indefinitely staying the case until the plaintiff was found competent.

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The decision, however, did not concern whether there was substantial evidence of incompetency;

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the plaintiff’s incompetence was undisputed. Davis, 745 F.3d at 1305 (“The district court

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recognized throughout the pendency of both cases that Davis was, and remains, incompetent.”).

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As for Yeager, the court sua sponte exercised its “legal obligation” under 17(c) “to

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consider whether the appointment of a guardian or some other order was necessary to protect

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[General Yeager’s] interests in this case” after the district judge personally observed General

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Yeager’s demeanor and behavior in a court proceeding. Yeager, 143 F. Supp. 3d. at 1045-46.

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Specifically, the district court noted that during an evidentiary hearing, General Yeager failed to

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testify, call any witnesses, question witnesses, introduce evidence, or make objections, and

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“expressed confusion when asked whether he would examine any witnesses.” Further, General

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Yeager “heavily relied” on his wife’s assistance during the hearing, and at times repeated her

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responses to the court. Id. at 1045.

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Here, plaintiff has demonstrated an ability to represent his interests and to understand
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Case 2:13-cv-02145-MCE-JDP Document 195 Filed 08/14/23 Page 6 of 7
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court orders notwithstanding his mental health condition. For example, plaintiff successfully

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moved for relief from judgment, ECF No. 15, resulting in the court reopening this case, ECF

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No. 20; sufficiently alleged cognizable claims, ECF No. 50; filed numerous motions for

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extensions of time, ECF Nos. 26, 29, 32, 39, 41, 43, 44, 47, 83, 87, 96, 130, 142; and

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successfully defended against motions for terminating sanctions, ECF Nos. 118, 139. And by no

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means is this list exhaustive. Plaintiff has demonstrated that he “understand[s] the nature or

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consequences of the proceeding.” Golden Gate Way, LLC, 2012 WL 4482053, at *2.

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Accordingly, the court finds that plaintiff has not demonstrated substantial evidence to warrant a

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competency hearing or the appointment of a guardian ad litem pursuant to Federal Rule of Civil

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Procedure 17(c).
Appointment of Counsel
The court does not find that appointment of counsel is warranted. Plaintiff does not have

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a constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 F.3d 1520,

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1525 (9th Cir. 1997), and the court lacks the authority to require an attorney to represent plaintiff.

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See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). The court can

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request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request

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an attorney to represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. But

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without a means to compensate counsel, the court will seek volunteer counsel only in exceptional

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circumstances. In determining whether such circumstances exist, “the district court must evaluate

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both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his

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claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525

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(internal quotation marks and citations omitted).

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After considering factors for the appointment of counsel, the court finds no exceptional

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circumstances here. Plaintiff has proficiently litigated this action since he filed it in 2013. The

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allegations in the complaint are not exceptionally complicated, and plaintiff has not demonstrated

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that he is likely to succeed on the merits.

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Accordingly, it is hereby ORDERED that plaintiff’s motion for the appointment of
counsel or guardian ad litem, ECF No. 192, is denied without prejudice.
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Case 2:13-cv-02145-MCE-JDP Document 195 Filed 08/14/23 Page 7 of 7
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IT IS SO ORDERED.

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Dated:
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August 11, 2023
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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