Tran v. Gore et al

Filing 70

ORDER Adopting In Part 60 Report and Recommendation; Granting 31 Motion to Compel; Denying without prejudice Motion for Sanctions; Denying 41 Motion to Dismiss; Denying 46 Motion for Relief. If Plaintiff chooses to go forward with this a ction, Defendants may renew their motion for sanctions. The Court Grants Plaintiff 30 days within which to either respond to the outstanding discovery or file a request for dismissal.Signed by Judge Barry Ted Moskowitz on 8/30/2013. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HOANG MINH TRAN,
Plaintiff,

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Case No. 10cv2457 BTM(WVG)
ORDER ADOPTING IN PART
REPORT AND
RECOMMENDATION; GRANTING
MOTION TO COMPEL; DENYING
WITHOUT PREJUDICE MOTION
FOR SANCTIONS; DENYING
MOTION TO DISMISS; DENYING
MOTION FOR RELIEF

v.

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WILLIAM D. GORE, Sheriff, et al.,
Defendants.

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In a Report and Recommendation (R&R) filed on April 29, 2013,

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Magistrate Judge Gallo recommends that terminating sanctions be imposed

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against Plaintiff and that Plaintiff’s case be dismissed in its entirety with

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prejudice. Plaintiff filed an objection to the Report and Recommendation. The

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Court has conducted a de novo review, and for the reasons discussed below,

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the Court ADOPTS in part the report and recommendation and grants Plaintiff

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30 days within which to either respond to the outstanding discovery or file a

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request for dismissal.

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Magistrate Judge Gallo found that Plaintiff’s failure to respond to

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Defendants’ discovery requests was not justified, despite his medical issues,

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and that failure to comply with his discovery obligations called for the ultimate

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sanction of dismissal. Plaintiff objects to the R&R, arguing that he provided

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sufficient evidence to Judge Gallo that he is incompetent and is unable to
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10cv2457 BTM(WVG)

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litigate this case without assistance.

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Previously, Plaintiff filed a motion for a competency hearing (Doc. 38)

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and submitted medical records in support of his motion. (Doc. 46 & 54.) Judge

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Gallo reviewed these records and determined that the medical records did not

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establish that Plaintiff was so impaired that he was unable to understand and

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respond to court orders.

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Competency Hearing, Doc. No. 55.) Judge Gallo also observed that when

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Plaintiff appeared before him for a show cause hearing, Plaintiff was very

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articulate and coherent and had no difficulty communicating with the Court.

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Accordingly, Judge Gallo denied Plaintiff’s motion for a competency hearing

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and denied a motion filed by Allan Tracy Gilmore to be appointed next friend

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for Plaintiff.

(Order Denying Plaintiff’s Motion Requesting

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The Court agrees with Judge Gallo that Plaintiff did not make the showing

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required for a competency hearing. A court must conduct a competency

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hearing when “a substantial question exists regarding the mental competence

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of a party proceeding pro se.” Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir.

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2005). A person is mentally incompetent if he suffers from a mental illness that

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prevents him from being able to understand and respond to the court’s orders.

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Id. at 1152.

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The medical records submitted by Plaintiff showed that he suffered from

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mental illness as well as physical ailments but did not reveal impairment rising

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to the level of incompetence. Indeed, mental status examinations on different

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dates indicated that Plaintiff was alert, oriented, coherent, and cooperative, with

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appropriate judgment and insight. (Doc. 46 at 14, 44; Doc. 54 at 2-5.) One

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doctor’s note stated, “English is a little broken but can advocate for self very

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well.” (Doc. 46 at 34.)

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Furthermore, Judge Gallo observed Plaintiff’s demeanor and conduct and

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did not find evidence of incompetence. Similarly, Magistrate Judge Major in
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another case filed by Plaintiff observed Plaintiff during a hearing and did not

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see any behavior or statements indicating mental incompetence. (Tran v.

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Gore, 10cv2682 BTM(BLM), Doc. 56 at 9.) Judge Major found that Plaintiff’s

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responses were appropriate to the Court’s questions and indicated that he

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clearly understood the proceedings. (Id.)

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Plaintiff has submitted additional evidence in connection with his

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objection to the R&R. This evidence consists of declarations by Plaintiff, Mr.

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Gilmore, and Plaintiff’s father, Minh Ky Tran, as well as additional medical

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records. Plaintiff, Mr. Gilmore, and Plaintiff’s father conclude that due to

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Plaintiff’s chronic pain and mental instability, Plaintiff cannot effectively

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understand the Court’s orders and cannot litigate this action by himself.

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(Doc.64 at 21, 37, 39.) However, these conclusions are not supported by facts.

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Plaintiff’s father recounts episodes where Plaintiff experienced psychosis,

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impulsive aggression and/or depression/suicidal thoughts. But these episodes

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do not show that Plaintiff was generally incapable of understanding and

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following Court orders.

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Like the previously submitted medical records, the supplemental medical

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records do not establish severe impairment rising to the level of incompetence.

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For example, the mental health examination on September 25, 2012, showed

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that Plaintiff was alert, oriented, coherent, cooperative, with normal speech,

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normal memory, and average intellect, although limited judgment and insight.

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(Doc. 64 at 17.) Grace Ning, Psy. D., stated that Plaintiff’s symptoms, including

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poor sleep, anxiety, depressed mood, poor concentration, auditory

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hallucinations, frequent headaches and dizziness, and chronic pain, “have led

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to impairment in Mr. Tran’s social and occupational functioning.” (Doc. 66 at

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4.) However, Dr. Ning does not provide any opinion regarding the extent of

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impairment - that Plaintiff is impaired to some degree is not questioned by the

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Court.
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10cv2457 BTM(WVG)

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The Court finds that Plaintiff has not shown that a substantial question

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exists regarding his mental competence. Therefore, Magistrate Judge Gallo

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did not err in denying his motion for a competency hearing and holding that

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Plaintiff’s mental impairments did not excuse his failure to respond to

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Defendants’ discovery requests. Therefore, the Court ADOPTS the Report and

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Recommendation to the extent that it finds that Plaintiff’s failure to respond to

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Defendants’ discovery was not justified.

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Plaintiff previously moved to dismiss this case due to his physical and

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mental impairments, but the Court deferred ruling on the motion until after

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resolution of the competency issue. Now that the Court has dealt with the

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competency issue, Plaintiff must decide whether to go forward with this action

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representing himself or whether he still wishes to dismiss the action. Because

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Plaintiff moved to dismiss before resolution of the competency issue, his motion

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is DENIED without prejudice to refiling as set forth below.

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Within 30 days of this Order, Plaintiff must either (1) respond to

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Defendants’ discovery requests and file a declaration with the Court that

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he has done so, or (2) file a new request for dismissal. Failure to do

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either will result in dismissal of this case with prejudice. If Plaintiff files

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a new request for dismissal, Defendants shall, within 10 days of the filing

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of the request, file a response which indicates whether Defendants object

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to dismissal without prejudice.

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The Court GRANTS Defendants’ motion to compel discovery [Doc. 31]

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and DENIES WITHOUT PREJUDICE Defendants’ motion for sanctions. If

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Plaintiff chooses to go forward with this action, Defendants may renew their

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motion for sanctions.

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Plaintiff’s motion to dismiss [Doc. 41] and DENIES Plaintiff’s motion for relief.

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[Doc. 46].

The Court also DENIES WITHOUT PREJUDICE

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IT IS SO ORDERED.

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DATED: August 30, 2013

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BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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