Harbor v. Cherniss et al

Filing 35

ORDER signed by Magistrate Judge Deborah Barnes on 06/07/17 denying 33 Motion to Appoint Counsel or a guardian ad litem. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TRAVYON C. HARBOR,

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Plaintiff,

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v.

No. 2:15-cv-0705 TLN DB P

ORDER

CHERNISS, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Pending is plaintiff’s second request for appointment of

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counsel or a guardian ad litem (“GAL”) based on post-traumatic stress disorder (“PTSD”).

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plaintiff’s first request was denied on April 13, 2017, for lack of evidentiary support. (ECF No.

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29.)

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Federal Rule of Civil Procedure 17(c) requires a court to “appoint a guardian ad litem-or

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issue another appropriate order—to protect a minor or incompetent person who is unrepresented

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in an action.” Fed. R. Civ. P. 17(c)(2). “A party proceeding pro se in a civil lawsuit is entitled to a

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competency determination when substantial evidence of incompetence is presented.” Allen v.

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Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005). In determining whether substantial evidence of

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incompetence is presented, the district court may consider sworn declarations from the pro se

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party or other inmates, sworn declarations or letters from treating psychiatrists or psychologists,
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and his medical history. Id. at 1152-54.

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A person’s capacity to sue is measured by the standard of the law of his domicile, Fed. R.

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Civ. P. 17(b)(1), here California state law. “In California, a party is incompetent if he or she lacks

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the capacity to understand the nature or consequences of the proceeding, or is unable to assist

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counsel in the preparation of the case.” Golden Gate Way, LLC v. Stewart, 2012 WL 4482053, at

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*2 (N.D. Cal. Sept. 28, 2012) (citing In re Jessica G., 93 Cal. App. 4th 1180, 1186 (2001); Cal.

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Civ. Proc. Code § 372; and In re Sara D., 87 Cal. App. 4th 661, 666-67 (2001)).

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As with his first request for a GAL, plaintiff’s pending request is premised on the post-

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traumatic stress disorder he claims to suffer following defendant Cherniss’s August 5, 2014,

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alleged sexual assault. As a result of that conduct, plaintiff asserts that he is currently

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experiencing night terrors, isolation, anxiety, paranoia delusions, fear, and frustration.

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Plaintiff’s first request was denied for lack of evidence of his mental impairment and its

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effect on his ability to litigate this action. In support of his renewed motion, plaintiff submits a

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number of documents, including the following:

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(1) An October 10, 2016, request submitted by plaintiff to see a clinician “about his
Mental Health Condition and PTSD.” (ECF No. 33 at 11);

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(2) An October 13, 2016, psychologist’s report noting plaintiff’s complaints of anxiety

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and stress related to the August 2014 incident. The examining psychologist suggested a PTSD

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group, consultation with a psychiatrist, and a referral to “CCCMS LOC.” (ECF No. 33 at 13);

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(3) An October 27, 2016, Mental Health Placement Chrono by the same psychologist who

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examined plaintiff two weeks earlier, noting plaintiff’s complaints of anxiety, stress, inability to

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sleep, and audio hallucinations (“I hear his voice, he is laughing”). This psychologist indicated

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that plaintiff meets the inclusion criteria for the Mental Health Services Delivery System

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(“MHSDS”) because he is experiencing anxiety, inability to sleep and disruptive thoughts. (ECF

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No. 33 at 12);

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(4) A November 4, 2016, Mental Health Evaluation completed by C. Montgomery, Ph.D.

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noting that plaintiff was sexually assaulted once when he was three years old. He also noted

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plaintiff’s symptoms as a result of the August 2014 incident, including anxiety, nightmares,
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depression, and weight loss. These notes indicated that plaintiff’s “[f]ocus and concentration were

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adequate. There did not appear to be any memory problems.” Following an examination, Dr.

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Montgomery concludes as follows: “Pt has PTSD from the incident and is developing a major

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depression as a result of having to stay in the setting. He had some timidity when very young

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from the 1st abuse but he overcame thant [sic]. This assault has probably triggered the old

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emotional trauma as well.” Dr. Montgomery then recommended a PTSD group one time per week

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for one month, a referral for a medication, and “CBT, grounding, exposure tx’s.” (ECF No. 33 at

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19);

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(5) A November 14, 2016, Interdisciplinary Progress Note from General Psychiatry where

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plaintiff noted himself indicated that he did not want to start any psychiatric medications at that

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point. Plaintiff was diagnosed with an adjustment disorder, no psych medications were indicated

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at that point, and he was advised to continue with “Therapy from PC.” (ECF No. 33 at 25.)

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(6) A November 17, 2016, Interdisciplinary Progress Note from Dr. Montgomery

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indicating that plaintiff was still “struggling with the thoughts and anxiety when back on the

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unit.” Plaintiff was advised to not withdraw into his cell but instead to continue his activities and

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try mindfulness, active distraction, and other anxiety-reducing techniques. Dr. Montgomery noted

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plaintiff to be “calm and cooperative” with “linear and coherent” thoughts and “intact” memory.

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(ECF No. 33 at 26.)

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(7) A November 29, 2016, Interdisciplinary Progress Note from Dr. Montgomery noting a

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recent incident of anxiety while plaintiff was watching football. Plaintiff was described as “stable

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but struggling with the thoughts and anxiety when back on the unit.” (ECF No. 33 at 28.)

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(8) A December 6, 2016, Interdisciplinary Progress Note from Dr. Montgomery noted an

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incident when defendant Cherniss was present during chow time and stood right next to plaintiff’s

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seat causing plaintiff to feel anxious. Dr. Montgomery reviewed anxiety-reducing techniques with

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plaintiff. (ECF No. 33 at 29.)

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(9) A December 19, 2016, Interdisciplinary Progress Note from Dr. Montgomery noting

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that plaintiff felt like “a huge weight has been lifted off of his shoulders” due to an upcoming

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transfer to another institution. Plaintiff “is sleeping a little better but is still extremey [sic] anxious
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walking in the halls and around guards and crowds.” (ECF No. 33 at 30.)

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(10) Two recent Interdisciplinary Progress Notes from March 1 and 7, 2017, indicate that

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plaintiff “appears stable but still struggles with intrusive thoughts and anxiety.” (ECF No. 33 at

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31-32.)

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The documentary evidence is helpful to establish that plaintiff suffers from anxiety and

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possibly PTSD as a result of defendant Cherniss’s alleged conduct. None of this information,

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however, even remotely suggests that plaintiff lacks “the capacity to understand the nature or

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consequences of the proceeding, or is unable to assist counsel in the preparation of the case.”

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Golden Gate Way, 2012 WL 4482053, at *2. For this reason, his motion for appointment of a

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GAL will be denied.

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Insofar as plaintiff seeks the appointment of counsel, district courts lack authority to

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require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer,

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935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir.

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1990). When determining whether “exceptional circumstances” exist, the court must consider

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plaintiff’s likelihood of success on the merits as well as 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. Palmer v. Valdez, 560 F.3d

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965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel).

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The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Circumstances common to most prisoners, such as lack of legal education and limited law

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library access, do not establish exceptional circumstances that warrant a request for voluntary

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assistance of counsel. Additionally, plaintiff’s claim that he suffers from a mental health

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condition, while supported by some evidence, fails to show that plaintiff lacks the ability to

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articulate his claims pro se. Having considered the factors under Palmer, the court finds that

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plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the

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appointment of counsel at this time.

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Based on the foregoing, IT IS HEREBY ORDERED that plaintiff’s second request for

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appointment of counsel or a GAL is DENIED.

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Dated: June 7, 2017

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/DLB7;
DB/Inbox/Substantive/harb0705.gal

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