OWENS v. CICCHI et al

Filing 70

MEMORANDUM OPINION. Signed by Judge Anne E. Thompson on 2/18/2014. (gxh)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Richard OWENS,
Plaintiff,
Civ. No. 09-4503
v.
MEMORANDUM OPINION
Edmond C. CICCHI, et al.,
Defendants.

THOMPSON, U.S.D.J.
This matter is before the Court upon Defendants’ motion for summary judgment.
(Docket No. 66). THE COURT FINDS AS FOLLOWS:
1. Plaintiff filed his initial Complaint in this matter on September 2, 2009, alleging that
while incarcerated at the Middlesex County Correctional Center the custody staff’s behavior
constituted a violation of his rights under “Title II of the ‘ADA’ of 1990, 42 U.S.C. 12131(2)”
for excessive force, cruel and unusual punishment, deliberated indifference, sadistic and
malicious discrimination, and intentional discrimination. (Docket No. 1).
2. Plaintiff’s Complaint was dismissed for failure to prosecute on April 21, 2011.
(Docket No. 29). Plaintiff filed a motion to re-open the case on December 5, 2012. (Docket No.
38). An Order was entered to re-open the case on September 25, 2013. (Docket No. 58).
3. On January 28, 2014, Plaintiff sent a letter to the Court stating the following:
I need help with my legal paperwork and I cant [sic] focus because I am stressed
out and worry that I will be attacked and I cant [sic] fall asleep no matter how
hard I try. I came off my psych. Med. Zyprexa couple months ago [sic] because I
believe the medical department is trying to give me diabetes and I was having side

affects [sic] that were leading to diabetes. Luckly [sic] I figured out what they
were doing. Or I need more time so I can find someone at the prison to help me.
Please let me know ASAP how much time I have to get this legal work done.
Thank you for your time.
On February 4, 2014, another prisoner, at Plaintiff’s request, prepared a letter discussing
Plaintiff’s mental health history. The letter stated the following:
Your honor may be aware that the Plaintiff has an “extensive” psychiatric history
with numerous hospitalizations. To date, the Plaintiffs’ [sic] mental health
problems are turbulent and/or intermittent and he is required to take psychiatric
medications. However, medication alone does not “guarantee” mental
competence. With that being said, the Plaintiff’s competency is a paramount
issues [sic], as it pertains to the Defendant’s Motion for Summary Judgment
and/or the matter at bar.
The February 4, 2014 letter also included exhibits listing Plaintiff’s medications and
medical problems as documented by the South Woods State Prison Medical Staff.
4. In Powell v. Symons, 680 F.3d 301 (3d Cir.2012) the Third Circuit held that, under
Fed.R.Civ.P. 17(c)(2), the district court has a sua sponte duty to inquire into the competency of
an unrepresented party under certain limited circumstances. The court held that sua sponte
review of competency is discretionary, but that it would be an abuse of discretion to grant
summary judgment in a matter without first engaging in such review when the district court is
presented with “verifiable evidence of incompetence.” Id. at 307.
5. The Powell court articulated two forms of verifiable evidence of incompetence that
trigger the district court's duty to inquire: evidence of a court or public agency's adjudication of
incompetence, or 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 or her legally
incompetent.” Id.
6. In this case, there is evidence demonstrating that Plaintiff is currently on prescription
medication to treat a mental illness that interferes with his ability to distinguish reality from

hallucination. While the Court does not here conclude that Plaintiff's mental illnesses are “of the
type that would render him or her legally incompetent,” the Court recognizes that they might.
Powell, 680 F.3d at 302. Accordingly, under Powell, the Court cannot proceed to Defendants'
motion for summary judgment without first either appointing counsel or determining that
Plaintiff is competent. Id.
7. Therefore, the Court will deny Defendants' motion for summary judgment without
prejudice to re-filing the motion after Plaintiff's counsel is appointed and the issue of Plaintiff's
competency has been addressed.
8. Within two weeks of entering an appearance, Plaintiff's appointed counsel shall file
with the Court a letter addressing whether the Court should conduct an evidentiary hearing
regarding Plaintiff's competency and whether the Court should also appoint Plaintiff a guardian
ad litem.
/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.

Date: February 18, 2014