Harris v. Macomber et al

Filing 54

ORDER signed by Magistrate Judge Deborah Barnes on 05/07/18 DENYING 20 , 29 plaintiff's third and fourth motions to appoint counsel and/or motion for a guardian ad litem competency hearing and DENYING 21 Plaintiff's September 2017 motion seeking permission to begin discovery. (Plummer, 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

JEFF MACOMBER, et al.,

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Defendants.

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Plaintiff is a prison inmate proceeding pro se and in forma pauperis with a civil rights

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action. On September 12, 2017, plaintiff filed a third motion for the appointment of counsel.

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(ECF No. 20). At the same time, plaintiff filed a motion requesting permission to begin discovery

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and/or to hold a scheduling conference. (See ECF No. 21). On December 12, 2017, plaintiff

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filed a fourth motion for the appointment of counsel and/or a motion for a guardian ad litem

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competency hearing. (See ECF No. 29).
Plaintiff's previous motions for appointment of counsel were filed on May 25, 2016, and

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January 3, 2017. (See ECF Nos. 9, 14). Both motions were denied. (See ECF Nos. 12, 15). For

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the reasons stated herein, the court will deny plaintiff’s motions to appoint counsel and his motion

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for a guardian ad litem competency hearing (ECF Nos 20, 29). The court will also deny

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plaintiff’s motion to begin discovery (ECF No. 21).

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I.

Plaintiff”s Motions to Appoint Counsel and Motion for a Guardian Ad Litem Hearing

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A.

Motions to Appoint Counsel

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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 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 would warrant a request for voluntary assistance of

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counsel.

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In the present case, the court does not find the required exceptional circumstances.

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Despite plaintiff’s mental health claims, the court notes that to date, plaintiff has been able to

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manage his case adequately without the assistance of counsel. Specifically, plaintiff has

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submitted a complaint and an amended complaint of his own volition and with no assistance, and

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he has articulated his claims clearly enough for them to survive statutory screening. (See ECF

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Nos. 1, 10). Plaintiff also appears to adequately comprehend his obligations in this matter. For

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example, he understands the purpose of and the need for discovery to the point that in September

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2017, he filed the instant request to begin discovery of his own volition. (See ECF No. 21).

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Throughout this action, plaintiff has also appeared to understand the need for and has then

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requested extensions of time to file the requisite documents in this case. (See ECF Nos. 13, 32).

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Indeed, plaintiff is so focused and intricately familiar with the details of his case that in

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August 2017, he filed a notice informing the court that he might have put the wrong case name on

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the nine USM-285 forms he had filed (see ECF No. 18), and in November 2017, he filed a request

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for entry of default against all of the defendants alleging that they had failed to timely file an
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answer to his complaint (see ECF No. 22). Both of these filings appear to have been done

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without the assistance of anyone else. (See generally ECF Nos. 18, 22). Finally, although

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plaintiff has provided a number of medical records that document his mental health limitations

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(see ECF No. 29 at 8-48), the majority of them appear to have been created back in April and

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May of 2017. (See id.).

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Some of the documents that plaintiff has filed have declarations from other inmates

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attached which attempt to verify his mental health issues and/or which state that they have

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assisted plaintiff with filing his pleadings. (See, e.g., ECF Nos. 13, 14). However, these

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documents are the exception and not the rule. (See, e.g., ECF Nos. 1, 2, 7, 8, 9, 10, 18, 22

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(documents plaintiff has prepared without assistance)). The fact that the assistance statements in

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plaintiff’s filings began to appear after the court pointed out their absence in its November 2016

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denial of plaintiff’s request for appointment of counsel (see ECF No. 12 at 2) is also noteworthy.

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(Compare ECF Nos. 1, 2, 7, 8, 9, 10 (plaintiff’s filings before court’s first denial of counsel and

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guardian ad litem appointment in November 2016), with ECF Nos. 13, 14 (plaintiff’s filings after

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court’s November 2016 denial)).

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In sum, none of the evidence plaintiff has presented to date demonstrates that plaintiff’s

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mental health deficits are currently interfering with his ability to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn, 789 F.2d at 1331; Weygandt,

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718 F.2d at 954. For these reasons, the court does not find that exceptional circumstances exist

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which warrant the appointment of counsel. Consequently, plaintiff’s motions for the appointment

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of counsel (ECF Nos. 20, 29) will be denied.

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B.

Motion for a Guardian Ad Litem Hearing
Federal Rule of Civil Procedure 17(c) requires a court to “appoint a guardian ad

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

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

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lawsuit is entitled to a competency determination when substantial evidence of incompetence

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is presented.” Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005). In determining

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whether substantial evidence of incompetence is presented, the district court may consider
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sworn declarations from the pro se party or other inmates, sworn declarations or letters from

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treating psychiatrists or psychologists, 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

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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)).

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As noted above, neither the record nor plaintiff’s actions to date indicate that plaintiff

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currently either lacks the capacity to understand the nature or consequences of the proceeding or

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that he would be unable to assist counsel with the preparation of his case. On the contrary, to

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date, plaintiff has appeared to clearly understand the proceedings and has been able to adequately

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represent himself. For these reasons, plaintiff’s motion for a guardian ad litem hearing (ECF No.

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29) will be denied.

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II.

Plaintiff’s Motion Seeking Permission to Engage in Discovery
Plaintiff’s motion to begin discovery was filed in September 2017. (See ECF No. 21).

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Since then, discovery has begun (see ECF No. 26), and motions to compel have been filed (see

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ECF Nos. 38-45). Currently, however, discovery is stayed pending a de novo review of the

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undersigned’s July 10, 2017 screening order by a district court judge. (See ECF No. 48). Despite

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this fact, given that discovery has begun, plaintiff’s motion to begin discovery (ECF No. 21) will

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be denied as moot.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s third and fourth motions to appoint counsel and/or motion for a guardian ad

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litem competency hearing (ECF Nos. 20, 29) are DENIED, and
2. Plaintiff’s September 2017 motion seeking permission to begin discovery (ECF No.
21) is DENIED as moot.

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DATED: May 7, 2018

/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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DLB:13
DB/ORDERS/ORDERS.PRISONER.CIVIL RIGHTS/harr0830.31.thr.gal.disc

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