Opinion and Order: Plaintiff is not entitled to a competency hearing under Fed. R. Civ. P. 17(c). As such, this action is DISMISSED without prejudice for failure to state a claim. Plaintiff may refile her suit by submitting a complaint naming specific defendants and containing a short and plain statement of her claims. She may again move for the appointment of pro bono counsel at that time. Signed on 10/27/2018 by Judge Michael J. McShane. (Copy mailed to plaintiff) (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Civ. No. 6:16-mc-00453-MC
OPINION AND ORDER
This case comes before the Court on remand from the Ninth Circuit. At issue is whether
Plaintiff, Melanie Perry, is entitled to a competency hearing under Fed. R. Civ. P. 17(c). The
Court concludes that Plaintiff is not so entitled. Plaintiff has failed to provide substantial
evidence of incompetence and thus cannot benefit from the protections of Fed. R. Civ. P. 17(c).
Pursuant to the Court’s previous Order, which held that Plaintiff has otherwise failed to state a
claim, the case is DISMISSED without prejudice. Plaintiff may refile by submitting a complaint
which names specific defendants and contains a short and plain statement of her claims.
The procedural posture of this case is peculiar. Plaintiff has not filed a complaint or even
named a defendant. The record presently consists in relevant part of a Civil Cover Sheet, a
motion for appointment of pro bono counsel, and the declaration of John Bell, a non-party. The
Civil Cover Sheet alleges broadly that “[g]overnment employees universally discriminate against
[Plaintiff’s] mental disability.” Mr. Bell’s declaration further alleges violations of the
1 – OPINION AND ORDER
Rehabilitation Act of 1973, Housing Act of 1937, and Due Process Clause of the Fourteenth
Amendment. Mr. Bell alludes to Plaintiff suffering from “psychosis,” but provides no further
details or documentation with respect to Plaintiff’s competency or specific mental condition.1
On November 18, 2016, after failing to respond to this Court’s Order to Show Cause, and
because of her failure to file a complaint, Plaintiff’s action was dismissed. On appeal, the Ninth
Circuit vacated the judgment and remanded the case with instructions to consider the
applicability of Fed. R. Civ. P. 17(c). The case is once again before this Court. 2
Plaintiff has failed to provide “substantial evidence” of her incompetence and is therefore
not entitled to a competency hearing. Under Fed. R. Civ. P. 17(c), a district court must appoint a
guardian ad litem or issue another appropriate order if it determines that an unrepresented party
is incompetent. A district court is only bound to inquire into a party’s competency if she first
presents “substantial evidence” of incompetence. Allen v. Calderon, 408 F.3d 1150, 1153 (9th
Cir. 2005); see also Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (requiring a
competency hearing when a “substantial question” exists as to the mental competence of a
party). 3 In determining whether a party has provided “substantial evidence” of incompetence, a
court may consider the declaration of that party, the declaration of a lay non-party, the
declaration or letter of a treating healthcare professional, and medical records submitted by the
party. See Allen, 408 F.3d at 1152.
Although relevant to assessing the necessity of a competency hearing, Plaintiff’s Civil Cover Sheet and Mr. Bell’s
declaration do not replace a complaint and the Court “may not consider any material beyond the pleadings” when
assessing whether Plaintiff has stated a claim. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
The Court remains skeptical that it has subject matter jurisdiction over any aspect of the action given that, absent
an adversarial party or dispute, there appears to be no “case or controversy” presented. See U.S. Const. art. III. It
nevertheless assumes for the purposes of compliance with the Ninth Circuit’s Mandate that consideration of the
present matter is appropriate.
A competency hearing is not the only option for a district court. See Krain, 880 F.2d at 1121 (allowing the lower
court to “dismiss . . . without prejudice [or] appoint a lawyer”). It is, however, the “preferred procedure.” Id.
2 – OPINION AND ORDER
Despite this diversity of potential evidentiary sources, the Ninth Circuit has treated
documentation of a party’s medical condition as the hallmark “substantial evidence.” In United
States v. 30.64 Acres of Land, for example, the court held that the plaintiff was entitled to a
competency hearing because his claim of incompetence was “made credible by official
documentation.” 795 F.2d 796, 805 (9th Cir. 1986). The plaintiff in that case submitted a
“detailed Social Security Administration (SSA) report finding him totally physically and
mentally disabled under SSA regulations.” Id. at 798. Similarly, in Allen, the court found
“substantial evidence of incompetence” based on a letter from the plaintiff’s treating psychiatrist
which stated that he had been diagnosed with Chronic Undifferentiated Schizophrenia and
prescribed psychotropic drugs, as well as the sworn declaration of a fellow inmate. 408 F.3d at
1153. The declaration and letter both described in detail the plaintiff’s debilitating condition and
made clear that he could “not understand the district court’s orders. Id.
In the absence of more precise guidance, lower courts within the Ninth Circuit have
declined to hold a competency hearing without detailed documentation of a party’s medical
condition. In Shack v. Knipp, for example, the district court concluded that the plaintiff had not
provided “substantial evidence” of incompetence despite having produced medical records
reflecting a diagnosis of schizoaffective disorder and the declaration of a fellow inmate. No. 12–
CV–794–MMA, 2012 WL 4111652, at *5 (S.D. Cal. Sept. 17, 2012). The court discounted the
inmate’s declaration “because he did not have the training to determine whether the petitioner
could understand and respond to court orders,” and noted that the plaintiff had failed to submit
his own sworn declaration or provide a letter from a treating psychiatrist. Id. Likewise, in
McElroy v. Cox, the court denied the plaintiff’s request for a competency hearing despite his
provision of medical records. No. 08-1221 JM, 2009 WL 4895360, at *3 (E.D. Cal. Dec. 11,
3 – OPINION AND ORDER
2009). Although the records were relevant, it concluded that the plaintiff had failed to articulate
or demonstrate a connection between his disorder and his ability to prosecute the case. Id.
Here, Plaintiff has provided no official documentation of her mental condition and
therefore cannot satisfy the substantial evidence standard. Unlike the plaintiffs in 30.64 Acres of
Land and Allen, Ms. Perry offers no declaration, letter, or other documentary proof of her
condition from a healthcare provider. Instead, like the plaintiff in Shack, Ms. Perry relies
exclusively on a lay non-party declaration as evidence of her incompetence and, unlike that
plaintiff, does not even provide medical records. Although Mr. Bell’s declaration repeatedly
refers to Plaintiff as having a “mental disability” and makes a passing reference to “psychosis,” it
offers no meaningful description or supporting documentation of Plaintiff’s condition. Indeed,
neither Plaintiff nor Mr. Bell suggest that she is unable to comprehend or competently participate
in court proceedings and Mr. Bell, like the declarant in Shack, does not have the training to
gauge Plaintiff’s competence. The absence of such a description and the failure to provide any
documentary evidence leave Plaintiff short of clearing the “substantial evidence” bar.
Plaintiff is not entitled to a competency hearing under Fed. R. Civ. P. 17(c). As such, this
action is DISMISSED without prejudice for failure to state a claim. Plaintiff may refile her suit
by submitting a complaint naming specific defendants and containing a short and plain statement
of her claims. She may again move for the appointment of pro bono counsel at that time.
It is so ORDERED and DATED this 27th of October, 2017.
/s/Michael J. McShane______
Michael J. McShane
United States District Judge
4 – OPINION AND ORDER
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