List Industries Inc. v. List

Filing 13

ORDER setting hearing re Defendant Larry Lists's competency for 10/2/2017 at 9:00 AM in LV Courtroom 3C before Magistrate Judge Carl W. Hoffman. Defendant Larry List to provide any documentary evidence pertaining to his competence by 9/25/2017. Signed by Magistrate Judge Carl W. Hoffman on 9/11/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LIST INDUSTRIES INC.,

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Plaintiff,
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v.
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LARRY LIST,
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Defendant.
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_______________________________________ )

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Case No. 2:17-cv-02159-JCM-CWH

ORDER

On September 7, 2017 this Court entered an order (ECF No. 12), denying pro se Defendant

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Larry List’s application to proceed in forma pauperis. Included in Defendant’s application were two

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exhibits, one entitled “CERTIFICATE OF INCAPACITY AND REGARDING THE NEED FOR

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GUARDIANSHIP,” and another that appears to be a copy of an e-mail Defendant sent to the Court’s

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technical support system. (ECF No. 11).

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The certificate of incapacity, dated May 17, 2013 and signed by a Dr. Scott Selco, declares

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that Defendant suffers, or suffered, from anoxic brain injury, and requires a legal guardian. In the

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attached e-mail, Defendant states that he has “decided, for multiple various reasons, that it is

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unhealthy for me to participate” in this case, and that he continues to have “many health problems.”

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Although Defendant does not explicitly claim to be incompetent, and his application to proceed in

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forma pauperis appears to have been drafted by a clear and effective communicator, the exhibits to

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his application call his competence into question. The Court must therefore consider whether to hold

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a competency hearing.

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I.

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DISCUSSION
Federal Rule of Civil Procedure 17(c)(2) requires the Court to “appoint a guardian ad litem –

or issue another appropriate order – to protect a minor or incompetent person who is unrepresented
in an action.” When a substantial question exists as to a pro se party’s competence, the court must

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conduct a hearing to determine whether or not the party is competent, so that a representative may be

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appointed, if needed. See Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989). Although the

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Ninth Circuit has not specified what constitutes a “substantial question,” it has ruled that failing to

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hold a competency hearing when presented with “sufficient evidence of incompetence” is an abuse

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of discretion. Allen v. Calderon, 408 F.3d 1150, 1151-52 (9th Cir. 2005) (finding that sufficient

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evidence of incompetence existed based on a plaintiff’s and another inmate’s sworn declarations of

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the plaintiff’s mental illness and inability to understand the court’s orders, which were supported by

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a letter from a prison psychiatrist stating that the plaintiff had been diagnosed with chronic

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undifferentiated Schizophrenia and was taking two psychotropic medications). Once a Court has

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determined that a substantial question of incompetence has been raised, it is obligated to make a

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determination of competence, but it has broad discretion, and “need not appoint a guardian ad litem

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if it determines the person is or can be otherwise adequately protected . . .” United States v. 30.64

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Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986).

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Here, Plaintiff has provided documentary evidence that he was determined to be incompetent

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in 2013, but does not explicitly claim to be incompetent at this time. The Court finds that the

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certificate of incapacity raises a substantial question about his current competency, and will hold a

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hearing on the matter.

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II.

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Conclusion
IT IS ORDERED that a hearing regarding Defendant Larry Lists’s competency is set for

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Monday, October 2, 2017, at 9:00 a.m. in Courtroom 3C, at the Lloyd D. George United States

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Courthouse, 333 Las Vegas Boulevard South, Las Vegas, Nevada. Defendant must appear before

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this Court for the hearing.

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IT IS FURTHER ORDERED that Defendant Larry List must provide the Court with any
documentary evidence that he has pertaining to his competence no later than September 25, 2017.
DATED: September 11, 2017

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_________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge
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