Irving v. Culton et al

Filing 119

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff William E. IrvingsMotion to Appoint a Guardian Ad Litem or, in the Alternative, Counsel (Doc. #115) is denied without prejudice. re: 115 MOTION to Appoint ad Litem filed by Plaintiff William E. Irving Signed by Magistrate Judge Frederick R. Buckles on 11/21/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM E. IRVING,
Plaintiff,
v.
KEVIN CULTON, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No.

4:12CV183 FRB

MEMORANDUM AND ORDER
Presently pending before the Court is plaintiff William
E. Irving’s Motion to Appoint a Guardian Ad Litem or, in the
Alternative, Counsel (Doc. #115).

All matters are pending before

the undersigned United States Magistrate Judge, with consent of the
parties, pursuant to 28 U.S.C. § 636(c).
Plaintiff William E. Irving proceeds in this prisoner
civil rights action pro se and in forma pauperis.

In the instant

motion, plaintiff avers that he has been declared incompetent to
proceed in a separate criminal cause of action, State v. Irving,
No. 12WA-CR00517, and thus requests the appointment of a guardian
ad litem in this action pursuant to Fed. R. Civ. P. 17(c)(2).

In

the alternative, plaintiff requests that counsel be appointed to
represent him.

The remaining defendant in the cause, Heather

Cofer, has not responded to the motion and the time for doing so
has passed.
be denied.

For the following reasons, plaintiff’s motion should

A.

Guardian Ad Litem
Rule 17(c)(2) of the Federal Rules of Civil Procedure

requires the Court to appoint a guardian ad litem—or issue another
appropriate

order—to

protect

unrepresented in an action.

an

incompetent

person

who

is

For a real party in interest to appear

through the representation of another, an adequate explanation must
be provided to demonstrate why the real party in interest cannot
appear on his own behalf to prosecute the action.

Cf. Whitmore v.

Arkansas, 495 U.S. 149, 163 (1990).
[A] district court must consider invoking Rule
17(c) when it receives “evidence from an
appropriate court of record or a relevant
public agency indicating that the party had
been adjudicated incompetent, or if the court
received verifiable evidence from a mental
health professional demonstrating that the
party is being or has been treated for mental
illness of the type that would render him . .
. legally incompetent.”
Mohamed v. TeBrake, 371 F. Supp. 2d 1043, 1046 (D. Minn. 2005)
(quoting Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196,
201 (2d Cir. 2003)).
Here, the undersigned takes judicial notice of the court
records in State v. Irving, No. 12WA-CR00517, and notes there to be
no adjudication of incompetence therein. While a motion to declare
plaintiff incompetent to proceed is pending in the cause, the
matter has not yet been determined.

Nor does the record contain

verifiable evidence from a mental health professional demonstrating
that plaintiff has or is being treated for a mental illness “of the
-2-

type that would render him legally incompetent.”

The Court does

not consider the letter submitted by plaintiff from his criminal
defense attorney indicating that a doctor has considered him to be
incompetent (Doc. #115-1 at p. 1) to be “verifiable evidence from
a

mental

health

professional.”

In

addition,

the

record

demonstrates that, while plaintiff has been diagnosed as having a
mental disorder, he has been and is currently receiving medication
and treatment (id. at pp. 2-3).

Finally, a review of plaintiff’s

submissions and filings in the instant cause of action shows
plaintiff able to frame his arguments and the relevant issues in
logical, coherent fashion with factual support and adherence to
procedure.
Because the current record before the Court fails to
demonstrate that plaintiff cannot appear on his own behalf to
prosecute the action, the appointment of a guardian ad litem is not
warranted at this time.
B.

Appointment of Counsel
In deciding whether to appoint counsel for an indigent

plaintiff, the Court should consider relevant factors, including
the factual complexity of the case, the ability of the indigent to
investigate the facts, the existence of conflicting testimony, and
the ability of the indigent to present his claims.

Stevens v.

Redwing, 146 F.3d 538, 546 (8th Cir. 1998).
The facts of this case are not complex. In the remaining

-3-

claim in this case, plaintiff alleges that defendant Cofer ordered
him confined to administrative segregation without property or
clothing after being sprayed with pepper spray.

A reading of

plaintiff’s Complaint and Amended Complaint shows him able to
investigate crucial facts. Plaintiff has adequately identified the
circumstances giving rise to his claim, the persons involved, and
the basis upon which he contends he is entitled to relief.

With

respect to the existence of conflicting testimony, the undersigned
notes that various claims have been disposed due to plaintiff’s
failure to exhaust administrative remedies and not on account of
the

factual

circumstances

giving

rise

to

the

substance

of

plaintiff’s case. To the extent conflicting testimony may exist on
plaintiff’s remaining claim, plaintiff has demonstrated in previous
filings that he is able to solicit testimonial evidence relevant to
the

issues

statements).

in

the

case.

(See,

e.g.,

Doc.

#96,

verified

Whether and to what extent conflicting testimony

exists with respect to the substance of plaintiff’s remaining claim
will be evident upon further proceedings in the cause.

Finally,

the complexity of the legal issues does not merit an appointment of
counsel at this time.
Because the factual nature of this case is not complex
and plaintiff has provided the Court with details giving rise to
his claim, the undersigned finds plaintiff able to adequately
present his claim to the Court.

-4-

Therefore, for all of the foregoing reasons,
IT IS HEREBY ORDERED that plaintiff William E. Irving’s
Motion to Appoint a Guardian Ad Litem or, in the Alternative,
Counsel (Doc. #115) is denied without prejudice.

UNITED STATES MAGISTRATE JUDGE

Dated this

21st

day of November, 2013.

-5-