Merriman v. Governor Jerry Brown et al.

Filing 100

ORDER GRANTING JOINT MOTION TO FIND PLAINTIFF INCOMPETENT & RECOMMENDING B. EPSTEIN FOR APPOINTMENT AS PLAINTIFF'S GUARDIAN AD LITEM by Hon. William Alsup granting 95 Motion.(whalc1, COURT STAFF) (Filed on 12/8/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JUSTIN MERRIMAN,

Case No. C 15-01715 WHA (PR)

v.
OFFICER TIERNEY, OFFICER
ROBINSON, DOES 1 to 50,

Plaintiff, [PROPOSED] ORDER GRANTING
JOINT MOTION TO FIND PLAINTIFF
INCOMPETENT & RECOMMENDING
B. EPSTEIN FOR APPOINTMENT AS
PLAINTIFF'S GUARDIAN AD LITEM

Defendants.

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Defendant S. Robinson and Plaintiff Justin Merriman jointly move for this Court to find

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Plaintiff incompetent under Federal Rule of Civil Procedure 17 and to appoint attorney Bette

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Epstein as Plaintiff’s Guardian Ad Litem. Defendant Tierney does not oppose the motion. For

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the reasons identified below, the motion is granted.

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DISCUSSION
Rule 17 concerns a party’s competence to participate in civil proceedings. See Fed. R. Civ.

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P. 17. The purpose of the rule is to protect an incompetent person's interests in prosecuting or

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defending a lawsuit. See Davis v. Walker, 745 F.3d 1303, 1310 (9th Cir. 2014) (citing Gardner v.

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Parson, 874 F.2d 131, 140 (3d Cir. 1989)). A party’s capacity to sue is determined by the law of
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[Proposed] Order Granting Joint Mot. Find Pl. Incompetent & Recommending B. Epstein for Appointment
as Pl.’s Guardian ad Litem (C 15-01715 WHA (PR))

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his domicile. AT&T Mobility, LLC v. Yeager, 143 F.Supp.3d 1042, 1050 (E.D. Cal. 2015) (citing

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Fed. R. Civ. P. 17(b)(1)) (“AT&T Mobility”). The test for incompetence to sue under California

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law is “whether the party has the capacity to understand the nature or consequences of the

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proceeding, and is able to assist counsel in preparation of the case.” Lee v. Retail Store Employee

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Bldg. Corp., 2016 WL 4191654, at *3 (N.D. Cal. Aug. 9, 2016) (quoting In re Jessica G., 113

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Cal.Rptr.2d 714, 718 (Ct. App. 2001)); accord AT&T Mobility, 143 F.Supp.3d 1050 (quoting

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Golden Gate Way, LLC v. Stewart, 2012 WL 4482053, at *2 (N.D. Cal. Sept. 28, 2012)). The

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Court may consider a broad range of evidence concerning “whether the person in question is able

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to meaningfully take part in the proceedings.” AT&T Mobility, 143 F.Supp.3d at 1050 (quoting In

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re Christina B., 19 Cal.App.4th 1441, 1450 (1993)). This evidence includes government reports,

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medical records, the representations of counsel, medical diagnoses, and the Court’s own

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observations. See id. (collecting cases).

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If a court determines that a party is incompetent to prosecute a law suit under applicable

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state law, and if that party is not represented by an appointed representative, Rule 17 empowers

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the court to appoint a representative to protect an incompetent person’s interests in the litigation.

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See Davis, 745 F.3d at 1310 (citing Gardner, 874 F.2d at 140 (3d Cir. 1989)). Once appointed, a

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guardian possesses “authority to engage counsel, file suit, and to prosecute, control and direct the

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litigation.” AT&T Mobility, 143 F.Supp.3d at 1052 (quoting Noe v. True, 507 F.2d 9, 12 (6th Cir.

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1974) (per curiam)) (internal quotations and citations omitted).

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Here, the Court has reviewed a copy of the report prepared by Dr. Anna Glezer outlining

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Plaintiff’s mental-health, diagnosing him as a paranoid schizophrenic.1 The report explains that

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Plaintiff’s decisions are heavily influenced by his delusion and hallucinations, and that Plaintiff

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cannot differentiate between fact and fiction. Dr. Glezer’s report also expresses doubt that

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Plaintiff’s mental health will substantially improve with additional treatment.

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On the basis of this report, the diagnosis contained therein, and the representations of
counsel, the Court finds Plaintiff incompetent to meaningfully take part in these proceedings.
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Dr. Glezer’s diagnosis confirms an earlier diagnosis of Plaintiff’s condition by officials
at San Quentin State Prison.
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[Proposed] Order Granting Joint Mot. Find Pl. Incompetent & Recommending B. Epstein for Appointment
as Pl.’s Guardian ad Litem (C 15-01715 WHA (PR))

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Accordingly, Plaintiff lacks capacity to maintain this suit without a representative under Rule 17.

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See AT&T Mobility, 143 F.Supp.3d at 1050.

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The parties have jointly recommended Ms. Epstein for appointment as Plaintiff’s Guardian

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Ad Litem. Ms. Epstein’s impressive qualifications, including previous guardianship experience,

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leave the Court with no doubt that she will provide Plaintiff with excellent representation. On

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that basis, this Court appoints Bette Epstein to serve as Plaintiff’s Guardian Ad Litem for the

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remainder of these proceedings or until this Court enters a contrary order.

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IT IS SO ORDERED

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December 8, 2016.
Dated: ___________________________

__________________________
The Honorable William Alsup

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[Proposed] Order Granting Joint Mot. Find Pl. Incompetent & Recommending B. Epstein for Appointment
as Pl.’s Guardian ad Litem (C 15-01715 WHA (PR))