Owens v. Clark et al

Filing 53

ORDER signed by Magistrate Judge Kendall J. Newman on 06/14/17 denying 47 plaintiff's request for a competency hearing and appointment of a guardian ad litem. Plaintiff's request for appointment of counsel 47 is denied. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DERRICK OWENS,

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No. 2:15-cv-0982 TLN KJN P

Plaintiff,
v.

ORDER

JACKIE CLARK, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On March 24, 2017, plaintiff filed his third request for appointment of

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counsel. In his motion for appointment of counsel, plaintiff argues that the court should hold a

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competency hearing and appoint a guardian ad litem to represent plaintiff. As set forth below,

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plaintiff’s motions are denied.

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Request for Appointment of Counsel

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As noted by plaintiff, he has previously sought the appointment of counsel on two prior

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occasions.

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Request for Competency Hearing and Appointment of Guardian ad Litem

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Plaintiff alleges that he is not competent to represent himself. Plaintiff alleges that he

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takes psychiatric medication because he hears voices and suffers from depression, and claims

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other disability related issues. (See also ECF No. 22 at 7.) Plaintiff alleges that he is currently

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housed at the California Medical Facility in the Enhanced Outpatient Program for mentally ill

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inmates.
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

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a 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. Allen, 408 F.3d at 1152-54.
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

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

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

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4482053, at *2 (N.D. Cal. Sept. 28, 2012) (citing In re Jessica G., 93 Cal.App.4th 1180, 1186

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(2001); Cal. Civ. Proc. Code § 372; and In re Sara D., 87 Cal.App.4th 661, 666-67 (2001)).
The undersigned accepts plaintiff’s representations that he suffers from a serious mental

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illness for which he is being treated. However, the undersigned observes that plaintiff’s pleadings

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demonstrate that plaintiff appears to understand the nature and consequences of these

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proceedings. Throughout this litigation, plaintiff has appropriately responded to the court’s

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orders, provided documents for service of process, and is now seeking discovery to support his

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claims, as well as the appointment of an expert witness. Whether or not plaintiff has obtained

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assistance to file his pleadings or other filings, it is apparent that plaintiff is able to assist in the

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preparation of his case, and understands the nature and consequences of this action. Therefore,

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plaintiff’s motion for a competency hearing and for appointment of a guardian ad litem is denied.

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For the reasons set forth in the court’s prior orders (ECF Nos. 13, 28), plaintiff’s motion for

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appointment of counsel is denied without prejudice.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for a competency hearing and appointment of a guardian ad litem

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(ECF No. 47) is denied; and
2. Plaintiff’s request for appointment of counsel (ECF No. 47) is denied without

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prejudice.

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Dated: June 14, 2017

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/owen0982.comp

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