Israel v. Nuno et al

Filing 62

ORDER REFERRING CASE TO PRO BONO PANEL FOR APPOINTMENT OF COUNSEL. Court will hold a competency hearing to determine whether Plaintiff is competent to proceed with this case. Court will first endeavor to appoint counsel for Plaintiff for the competen cy hearing by referring case to the district's pro bono panel. If Court is unable to appoint counsel for Plaintiff for the competency hearing, Court will issue an order setting the hearing and providing further guidance to Plaintiff. Because of Plaintiff's potential incompetency, Court stays 58 MOTION for Summary Judgment filed by Defendant Kornbluth. Signed by Judge Cynthia Bashant on 2/2/2017. (cc: Pro Bono Administrator) (All non-registered users served via U.S. Mail Service) (jah). Modified on 2/3/2017 - Edited text. (jah).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ISRAEL GARCIA, Case No. 14-cv-00243-BAS-AGS Plaintiff, 12 13 14 v. ANTONIO NUNO, et al., 15 Defendants. 16 17 ORDER: (1) REFERRING CASE TO PRO BONO PANEL FOR APPOINTMENT OF COUNSEL FOR COMPETENCY DETERMINATION; AND (2) STAYING DR. KORNBLUTH’S MOTION FOR SUMMARY JUDGMENT (ECF No. 58) 18 19 Plaintiff Israel Garcia is a state prisoner proceeding pro se and in forma 20 pauperis. On January 31, 2014, he commenced this action under 42 U.S.C. § 1983 21 alleging various claims against California Department of Corrections and 22 Rehabilitation personnel at Calipatria State Prison. Now, Plaintiff has one claim 23 remaining. This claim alleges Defendant R. Kornbluth, a state physician, violated 24 Plaintiff’s rights under the Eighth Amendment by failing to provide him with proper 25 medical care. 26 On October 13, 2016, in an unrelated criminal proceeding, the Superior Court 27 of California for the County of Riverside determined Plaintiff is mentally 28 incompetent. (ECF No. 59-1.) The state court ordered Plaintiff to be committed to –1– 14cv0243 1 Patton State Hospital or the other appropriate state mental health department for a 2 maximum of three years. (Id.) 3 Then, on January 19, 2017, Dr. Kornbluth filed a motion for summary 4 judgment on Plaintiff’s remaining claim. (ECF No. 58.) That same day, Dr. 5 Kornbluth filed a notice regarding Plaintiff’s possible incompetence—informing the 6 Court of the state court’s mental incompetency determination. (ECF No. 59.) In light 7 of this information, the Court will address Plaintiff’s competency and Dr. 8 Kornbluth’s dispositive motion. 9 10 I. Rule 17(c) of the Federal Rules of Civil Procedure governs the representation 11 12 COMPETENCY of minor or incompetent litigants. This rule provides in part: 13 16 A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action. 17 Fed. R. Civ. P. 17(c)(2). Rule 17(c)’s purpose “is to protect an incompetent person’s 18 interests in prosecuting or defending a lawsuit.” Davis v. Walker, 745 F.3d 1303, 19 1310 (9th Cir. 2014). Based on this rule, the Ninth Circuit has “reasoned that when a 20 substantial question exists regarding the mental competence of a party proceeding 21 pro se, the proper procedure is for the district court to conduct a hearing to determine 22 competence, so a guardian ad litem can be appointed, if necessary.” Allen v. 23 Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005) (citing Krain v. Smallwood, 880 F.2d 24 1119, 1121 (9th Cir. 1989)); see also, e.g., AT&T Mobility, LLC v. Yeager, 143 F. 25 Supp. 3d 1042, 1055 (E.D. Cal. 2015) (appointing guardian ad litem under Fed. R. 26 Civ. P. 17(c)(2) after determining retired brigadier general was incompetent 27 following competency hearing). 28 // 14 15 –2– 14cv0243 1 Here, a substantial question exists regarding the mental competence of a party 2 proceeding pro se—Plaintiff. The state court’s October 13, 2016, mental 3 incompetency determination indicates Plaintiff may be incompetent. In addition, 4 Plaintiff filed a change of address on January 19, 2017, identifying the address for 5 Patton State Hospital—a psychiatric hospital. (See ECF No. 60.) Yet, he also filed a 6 change of address on January 30, 2017, identifying the address for the Robert Presley 7 Detention Center, which indicates he may no longer be committed to a state mental 8 health institution. (See ECF No. 61.) Given the foregoing, the Court concludes it is 9 appropriate to hold a hearing to determine whether Plaintiff is incompetent and, if so, 10 whether a guardian ad litem should be appointed. See Fed. R. Civ. P. 17(c)(2); Allen, 11 408 F.3d at 1153. 12 At the same time, the Court recognizes the due process considerations 13 implicated by undertaking a competency determination. If the Court determines 14 Plaintiff is incompetent, it may, as mentioned, appoint a guardian ad litem. See Fed. 15 R. Civ. P. 17(c)(2). A guardian ad litem “is ‘[a] guardian, [usually] a lawyer, 16 appointed by the court to appear in a lawsuit on behalf of an incompetent or minor 17 party.’ ” Yeager, 143 F. Supp. 3d at 1052 (alterations in original) (quoting Guardian, 18 Black’s Law Dictionary (10th ed. 2014)). A guardian ad litem has the authority to 19 prosecute, control, and direct the control of the litigation. Id. The guardian may retain 20 counsel and settle the claim on behalf of the incompetent party. United States v. 30.64 21 Acres of Land, More or Less, Situated in Klickitat Cty., State of Wash., 795 F.2d 796, 22 805 (9th Cir. 1986). Thus, although an incompetent litigant can proceed with the case 23 through the appointment of a guardian ad litem, the appointment deprives the litigant 24 of “the right to control the litigation.” Thomas v. Humfield, 916 F.2d 1032, 1034 (5th 25 Cir. 1990). In addition, an incompetency determination may subject a litigant to 26 stigmatization. Id. 27 In light of Plaintiff’s possible incompetency and the due process considerations 28 implicated by a competency determination, the Court finds it is appropriate to request –3– 14cv0243 1 counsel for Plaintiff for the competency hearing. This district’s General Order No. 2 596 adopted the Plan of the United States District Court for the Southern District of 3 California for the Representation of Pro Se Litigants in Civil Cases (“Pro Bono 4 Plan”). See General Order No. 596, https://www.casd.uscourts.gov/Rules/ 5 GeneralOrders/Lists/General%20Orders/Attachments/107/GO_596.pdf. 6 Bono Plan provides a series of factors for this Court to consider when determining if 7 a case is appropriate for the appointment of counsel. See Pro Bono Plan at 1. It also 8 provides that nothing in the plan “prevents the assigned judge from appointing 9 counsel if it is apparent from the pleadings or other materials before the Court that 10 the pro se civil plaintiff has mental or other disabilities substantially interfering with 11 his or her ability to present the factual and legal claims and making an appropriate 12 application for appointment of counsel.” Id. An appointment of counsel is appropriate 13 in this case based on (i) the substantial risk Plaintiff is incompetent and (ii) the 14 assistance counsel can provide the Court with undertaking a competency 15 determination. See id. (providing whether appointment is appropriate may depend on 16 “the degree to which the ends of justice will be served by appointment of counsel, 17 including the extent to which the Court may benefit from the appointment” and “any 18 other factors deemed appropriate”). The Pro 19 Accordingly, concurrently with the filing of this Order, the Court will submit 20 the appropriate request for an appointment of counsel for Plaintiff for the competency 21 hearing to the district’s pro bono coordinator. See Pro Bono Plan at 2. In addition, 22 given the circumstances of this case, the Court finds it is appropriate to initially direct 23 the request to pro bono panel member San Diego Volunteer Lawyer Program. That 24 said, if this Court is unable to appoint counsel for Plaintiff for the competency 25 hearing, it will nonetheless hold the hearing to determine whether Plaintiff is 26 competent and, if necessary, to issue an appropriate order under Rule 17(c)(2). 27 // 28 // –4– 14cv0243 1 II. STAY OF DISPOSITIVE MOTION 2 The Ninth Circuit has “held that if an ‘incompetent person is unrepresented, 3 the court should not enter a judgment which operates as a judgment on the merits 4 without complying with Rule 17(c).’ ” Allen, 408 F.3d at 1153 (quoting Krain, 880 5 F.2d at 1121); see also Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 203 6 (2d Cir. 2003) (noting “a judgment entered against a mentally incompetent defendant 7 not represented by a guardian or a guardian ad litem may be subject to collateral 8 attack at a later date”). Here, because there is a substantial question as to Plaintiff’s 9 competency, the Court will stay Dr. Kornbluth’s motion for summary judgment. See 10 Allen, 408 F.3d at 1153. Once the Court resolves the issue of Plaintiff’s competency, 11 the Court will issue a new briefing schedule for Dr. Kornbluth’s motion. 12 13 III. CONCLUSION 14 In light of the foregoing, the Court will hold a competency hearing to 15 determine whether Plaintiff is competent to proceed with this case. However, the 16 Court will first endeavor to appoint counsel for Plaintiff for the competency hearing 17 by referring this case to the district’s pro bono panel. If the Court is unable to appoint 18 counsel for Plaintiff for the competency hearing, the Court will issue an order setting 19 the hearing and providing further guidance to Plaintiff. In addition, the Court STAYS 20 Dr. Kornbluth’s motion for summary judgment (ECF No. 58) because of Plaintiff’s 21 potential incompetency. 22 IT IS SO ORDERED. 23 24 DATED: February 2, 2017 25 26 27 28 –5– 14cv0243

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