List Industries Inc. v. List
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)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
LIST INDUSTRIES INC.,
Case No. 2:17-cv-02159-JCM-CWH
On September 7, 2017 this Court entered an order (ECF No. 12), denying pro se Defendant
Larry List’s application to proceed in forma pauperis. Included in Defendant’s application were two
exhibits, one entitled “CERTIFICATE OF INCAPACITY AND REGARDING THE NEED FOR
GUARDIANSHIP,” and another that appears to be a copy of an e-mail Defendant sent to the Court’s
technical support system. (ECF No. 11).
The certificate of incapacity, dated May 17, 2013 and signed by a Dr. Scott Selco, declares
that Defendant suffers, or suffered, from anoxic brain injury, and requires a legal guardian. In the
attached e-mail, Defendant states that he has “decided, for multiple various reasons, that it is
unhealthy for me to participate” in this case, and that he continues to have “many health problems.”
Although Defendant does not explicitly claim to be incompetent, and his application to proceed in
forma pauperis appears to have been drafted by a clear and effective communicator, the exhibits to
his application call his competence into question. The Court must therefore consider whether to hold
a competency hearing.
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
conduct a hearing to determine whether or not the party is competent, so that a representative may be
appointed, if needed. See Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989). Although the
Ninth Circuit has not specified what constitutes a “substantial question,” it has ruled that failing to
hold a competency hearing when presented with “sufficient evidence of incompetence” is an abuse
of discretion. Allen v. Calderon, 408 F.3d 1150, 1151-52 (9th Cir. 2005) (finding that sufficient
evidence of incompetence existed based on a plaintiff’s and another inmate’s sworn declarations of
the plaintiff’s mental illness and inability to understand the court’s orders, which were supported by
a letter from a prison psychiatrist stating that the plaintiff had been diagnosed with chronic
undifferentiated Schizophrenia and was taking two psychotropic medications). Once a Court has
determined that a substantial question of incompetence has been raised, it is obligated to make a
determination of competence, but it has broad discretion, and “need not appoint a guardian ad litem
if it determines the person is or can be otherwise adequately protected . . .” United States v. 30.64
Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986).
Here, Plaintiff has provided documentary evidence that he was determined to be incompetent
in 2013, but does not explicitly claim to be incompetent at this time. The Court finds that the
certificate of incapacity raises a substantial question about his current competency, and will hold a
hearing on the matter.
IT IS ORDERED that a hearing regarding Defendant Larry Lists’s competency is set for
Monday, October 2, 2017, at 9:00 a.m. in Courtroom 3C, at the Lloyd D. George United States
Courthouse, 333 Las Vegas Boulevard South, Las Vegas, Nevada. Defendant must appear before
this Court for the hearing.
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
C.W. Hoffman, Jr.
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?