In re: Henry Lagmay

Filing 13

ORDER Denying 10 Motion to Appoint a Representative, Next Friend, or Guardian Ad Litem. Signed by JUDGE DERRICK K. WATSON on 6/9/2015. ~ Plaintiff's Motion to Enforce Rule 17 is DENIED without prejudice. Plaintiff is reminded t hat the amended complaint and civil filing fee or in forma pauperis application remain due on or before June 19, 2015. Failure to complywith this deadline may result in dismissal of this action for failure to pay,prosecute, or follow a court order. Plaintiff is further notified that he may voluntarily dismiss this actionwithout payment or penalty by notifying the Court in writing on or before June 19, 2015. (ecs, )CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

IN RE:
HENRY LAGMAY, #A0191119,
Plaintiff,

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CIV. NO. 15-00166 DKW/RLP
ORDER DENYING MOTION TO
APPOINT A REPRESENTATIVE,
NEXT FRIEND, OR GUARDIAN AD
LITEM

ORDER DENYING MOTION TO APPOINT A REPRESENTATIVE, NEXT
FRIEND, OR GUARDIAN AD LITEM
On May 15, 2015, this court dismissed pro se Plaintiff Henry Lagmay’s
Complaint. Although the Complaint’s allegations were insufficient to state a
claim, erring on the side of caution, the court granted Plaintiff leave to amend on or
before June 19, 2015. See Order, Doc. No. 4. Plaintiff was also instructed to
complete an in forma pauperis application or to submit the civil filing fee for
commencing this action. Plaintiff is incarcerated at the Halawa Correctional
Facility (“HCF”).
On May 21, 2015, Plaintiff sought appointment of counsel, in forma
pauperis status, and a stay of the proceedings. See Doc. Nos. 5, 6. Magistrate
Judge Puglisi denied the motion to appoint counsel, finding it impossible to assess

the propriety of appointing counsel when Plaintiff has not yet filed an amended
complaint that addresses and cures the deficiencies noted in the May 15, 2015
Order dismissing the Complaint. See Doc. No. 8, PageID #3. Magistrate Judge
Puglisi denied the in forma pauperis request as moot, because Plaintiff’s Motion
showed that he had requested prison officials to issue and send a check for the full
civil filing fee to the Clerk of Court. Id. Finally, Magistrate Judge Puglisi denied a
stay of the proceedings because Plaintiff provided no facts justifying such relief.
On June 3, 2015, Plaintiff filed three documents: (1) a demand for a jury
trial; (2) a request for a summons to “Secure; All Liberty Int[e]rests,” and (3) a
“Motion: To: Enforce RULE 17” of the Federal Rules of Civil Procedure. See
Doc. Nos. 9-11. Plaintiff’s jury demand has been noted on the docket, and he is
notified that the Clerk will not issue a summons in this action until directed to do
so. The Court will not direct issuance of a summons until Plaintiff has filed a
cognizable claim for relief, and the Court orders a defendant to answer. See
42U.S.C. § 1997e(g)(2) (“The court may require any defendant to reply to a
complaint brought under this section if it finds that the plaintiff has a reasonable
opportunity to prevail on the merits.”).
With regard to Plaintiff’s Motion to Enforce Rule 17, the Court declines to
appoint a representative, guardian ad litem, or next friend to assist Plaintiff at this
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time. Pursuant to Fed. R. Civ. P. 17(c), the district 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.” That is, when a party submits
“substantial evidence” of his or her incompetence, the court should hold a
competency hearing to determine whether he or she is competent, and appoint a
representative if necessary. Allen v. Calderon, 408 F.3d 1150, 1153-54 (9th Cir.
2005). Non-exclusive examples of “substantial evidence” of incompetence are the
party’s sworn declaration, declarations from fellow inmates, psychiatric records,
and letters or declarations from a treating psychiatrist outlining the party’s
diagnosis for one or more mental illnesses, treatment program, and medications
prescribed. Id. At 1151-52. The Court, however, need not accept a party’s
uncorroborated and unsupported statements regarding competency. See Johnson v.
Girubino, 291 F.App’x 9, at *11 (9th Cir. 2008).
Other than Plaintiff’s bald citation to Rule 17(c), he provides no support
suggesting that he requires appointment of a guardian ad litem, representative, or
next friend to successfully amend his pleadings and prosecute his claims. Indeed,
the record shows that Plaintiff is capable of understanding the rules of procedure
and the governing law underlying his claims. For example, Plaintiff discusses the
possibility that his claims are time-barred, and cites to federal statutes that may
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provide a basis for relief on his conspiracy claims. He has called the Office of the
Clerk numerous times to discuss his action and claims, and to explain what the
court should expect to receive from him in the future. Plaintiff has made
reasonable, tactical, well thought out motions in response to the dismissal of his
Complaint, including requests for appointment of counsel, a stay of the
proceedings, demand for a jury trial and summons, and the present motion for
representation based on his alleged incompetence. Plaintiff’s alleged
incompetence has not prevented him from commencing this action, seeking in
forma pauperis status, pursuing such status with prison authorities as directed by
the Court, and understanding and responding to this Court’s orders. In sum,
Plaintiff fails to provide substantial evidence of his mental incompetency to require
a competency hearing at this time.
CONCLUSION
Plaintiff’s Motion to Enforce Rule 17 is DENIED without prejudice.
Plaintiff is reminded that the amended complaint and civil filing fee or in forma
pauperis application remain due on or before June 19, 2015. Failure to comply
with this deadline may result in dismissal of this action for failure to pay,
prosecute, or follow a court order.

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Plaintiff is further notified that he may voluntarily dismiss this action
without payment or penalty by notifying the Court in writing on or before
June 19, 2015.
IT IS SO ORDERED.
Dated: June 9, 2015 at Honolulu, Hawai’i.

In Re Henry Lagmay, #A0191119; Civ No. 15-00166 DKW-RLP; ORDER
DENYING MOTION TO APPOINT A REPRESENTATIVE, NEXT FRIEND,
OR GUARDIAN AD LITEM
In re: Henry Lagmay, 1:15-cv-00166 DKW/RLP; Ords 2015; J:\PSA Draft Ords\DKW\Lagmay 15cv166 dkw (R17 appt. g. ad
litem) .wpd

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