Evans v. Dzurenda et al

Filing 4

ORDER deferring decision on ECF No. 1 IFP application and screening of complaint; indicating that the Court will enter a separate order setting telephonic hearing re Plaintiff's mental competence and directing Plaintiff to file any doc umentation to support his claim at least three days before the hearing; directing Clerk to serve this order on the NV AG (NEF sent 4/11/2019); directing the AG within 10 days to enter a limited notice of appearance; directing AG to file under seal any mental health, medical, or other records at least three days before the hearing. Signed by Magistrate Judge William G. Cobb on 4/11/2019. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

3 TODD EVANS,
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Plaintiff

5 v.

Case No.: 3:18-cv-00283-RCJ-WGC
Order
Re: ECF No. 3

6 JAMES DZURENDA, et. al.,
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Defendants

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Plaintiff is incarcerated within the Nevada Department of Corrections (NDOC), and is

10 housed at Northern Nevada Correctional Center (NNCC). He filed an application for leave to
11 proceed in forma pauperis for a prisoner and proposed pro se civil rights complaint. (ECF Nos. 1,
12 1-1.) He subsequently filed a motion for appointment of guardian ad litem. (ECF No. 3.)
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In his complaint, Plaintiff alleges that prison officials have a policy of delaying and

14 denying treatment under Medical Directive 219, which pertains to treatment of prisoners with
15 hepatitis C. Plaintiff has hepatitis C and claims he has been denied treatment, including new drug
16 therapy, which has made his condition uncontrolled and caused him to develop multiple medical
17 issues including infection. He also alleges a delay in treatment for 17 months for severe issues
18 with his spine, including an MRI and surgery. As a result, he alleges he has suffered in pain and
19 has nerve damage. He also claims he was denied medication after his surgery as punishment for
20 filing medical grievances.
21

Plaintiff's complaint must be screened under 28 U.S.C. § 1915A. The court has

22 undertaken a preliminary review of Plaintiff's complaint. It is likely that the complaint will be
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1 dismissed with leave to amend. In light of Plaintiff's filing of a motion for appointment of a
2 guardian ad litem, the court will defer screening at this time.
3

In his motion for appointment of a guardian ad litem, drafted by inmate preparer Roger

4 Hull, Plaintiff states that he commenced this action on June 14, 2018, and since that time his
5 health has deteriorated. Specifically, he states that he is unable to write due to neurological
6 damage affecting his eyesight, concentration, and motor skills. In addition, he is currently in a
7 wheel chair. On September 28, 2018, he was diagnosed with a lesion in his brain and plans were
8 being made to remove it. He was advised by medical staff he may not survive the surgery and
9 there was no guarantee the surgery would be successful. Plaintiff is in a segregated unit without
10 access to another inmate to assist him, and he does not have the ability to confer with the law
11 library inmate who drafted this motion on a regular basis.
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Under Federal Rule of Civil Procedure 17(c), a "court must appoint a guardian ad litem-

13 or issue another appropriate order-to protect a minor or incompetent person who is unrepresented
14 in an action." The preliminary step in addressing a motion for appointment of guardian ad litem
15 is to have a hearing to determine whether there is a "substantial question" regarding the movant's
16 mental competence. See Harris v. Mangum, 863 F.3d 1133, 1138 (9th Cir. 2017) (citing Allen v.
17 Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005)). If there is a substantial question as to
18 competency, the court will proceed with a competency hearing. Id. If the movant is determined
19 incompetent a guardian ad litem is required, or the court can fashion some other order to protect
20 the litigant's interests (i.e., appointment of counsel). See Davis v. Walker, 745 F.3d 1303, 1310
21 (9th Cir. 2014).
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In light of Plaintiff's claims that he has been diagnosed with a brain lesion that has

23 affected his ability to write, as well as his eyesight, concentration and motor skills, and because

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1 the court has not been informed whether Plaintiff has undergone surgery for the brain lesion and
2 his current condition, the court will set a hearing to determine whether there is a substantial
3 question regarding Plaintiff's mental competence.
4

In advance of the hearing, Plaintiff may file any documentation that he contends supports

5 his claim of incompetence or inability to represent himself in this litigation.
6

The Attorney General's Office is ordered to enter a limited notice of appearance for the

7 purpose of addressing Plaintiff's current mental competence and medical condition at the
8 hearing. The Attorney General's Office is also ordered to file under seal any medical or mental
9 health records pertinent to Plaintiff's current competence level and medical status.
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11

CONCLUSION
A decision on the application to proceed in forma pauperis and screening of the

12 complaint (ECF Nos. 1, 1-1) are DEFERRED.
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The court will enter a separate order setting the telephonic hearing addressing whether

14 there is a substantial question regarding Plaintiff's mental competence. Plaintiff may file any
15 documentation he has to support his claim of incompetence or inability to litigate this matter
16 representing himself AT LEAST THREE DAYS BEFORE THE HEARING.
17

The Clerk must electronically SERVE a copy of this Order on the Office of the Attorney

18 General of the State of Nevada, by adding the Attorney General of the State of Nevada to the
19 docket sheet. This does not indicate acceptance of service.
20

Within TEN DAYS of the date of this Order, the Attorney General's Office must enter a

21 limited notice of appearance for the purpose of appearing for a telephonic hearing addressing
22 whether there is a substantial question as to Plaintiff's competency and ability to proceed pro se
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3

1 with this litigation. No defenses or objections, including lack of service, will be waived as a
2 result of the filing of the limited notice of appearance.
3

AT LEAST THREE DAYS BEFORE THE HEARING, the Attorney General's Office

4 must file under seal any mental health records, medical or other records that are relevant to
5 Plaintiff's mental health, competence or current medical status.
6 IT IS SO ORDERED.
7 Dated: April 11, 2019
8

_________________________________
William G. Cobb
United States Magistrate Judge

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