Harris v. Macomber et al

Filing 12

ORDER signed by Magistrate Judge Deborah Barnes on 11/14/16 ORDERING that plaintiff's May 25, 2016, motion (ECF No. 9 ) is DENIED without prejudice to its renewal with proper evidentiary support. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GRADY HARRIS,

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Plaintiff,

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No. 2:16-cv-0830 DB P

v.

ORDER

J. MACOMBER, et al.,

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Defendants.

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I.

Introduction

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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. Plaintiff has consented to the jurisdiction of a magistrate

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judge. (ECF No. 8.) No appearances have been made by any defendants.

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Plaintiff initiated this action on April 21, 2016. On April 29, 2016, plaintiff’s complaint

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was screened and dismissed with leave to amend for improper joinder of claims and defendants in

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violation of Federal Rule of Civil Procedure 20(a).

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Plaintiff has since filed a motion for guardian ad litem (“GAL”), competency hearing

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and/or motion to appoint counsel. (ECF No. 9.) He has also filed a first amended complaint. (ECF

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No. 10.)

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II.

Plaintiff’s Competence

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In his motion for GAL, competency hearing and/or motion to appoint counsel, plaintiff

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contends he suffers from serious mental disorders that require prescribed psychotropic

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medications that affect his ability to think, eat, sleep, read and comprehend court orders and

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requirements in this action. He also claims that he relies on other inmates to prepare, serve and

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file legal pleadings, and to read and explain court orders to him. In support of his motion, plaintiff

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submits a November 2007 order issued by the Honorable Jan M. Adler from the Southern District

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of California in a federal habeas action filed by plaintiff, Harris v. Wong, Case No. 06-cv-1747

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JLS JMA (S.D. Cal. Nov. 6, 2007). There, Magistrate Judge Adler granted plaintiff’s application

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for a competency hearing based on evidence that plaintiff’s mental health and related medications

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affected his ability to proceed on his own. See Pl.’s Mot. Guardian Ad Litem (“GAL”) Ex. A.

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Judge Adler’s motion was based on a review of plaintiff’s voluminous psychiatric records and the

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declaration of an inmate assisting plaintiff with his federal filings. Here, plaintiff submits no

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medical documentation of his mental disorder, no evidence of the type and amount of medication

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he is prescribed, and no declaration from any inmate stating that plaintiff is incapable of

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prosecuting this action without assistance.

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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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Since plaintiff has presented no evidence concerning his current mental health condition,

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no evidence concerning the medications he is prescribed, and no evidence that others assist and/or

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prepare his legal filings, his motion for a competency hearing and for appointment of a GAL will

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be denied at this time.

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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. Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

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Additionally, plaintiff’s claim that he suffers from a mental health condition is unsupported by

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any evidence. Having considered the factors under Palmer, the court finds that plaintiff has failed

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to meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.

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III.

Conclusion
Based on the foregoing, IT IS HEREBY ORDERED that plaintiff’s May 25, 2016, motion

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(ECF No. 9) is DENIED without prejudice to its renewal with proper evidentiary support.

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Dated: November 14, 2016

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/DLB7;harr0830.gal

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