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Joseph Lavery v. Vimal Singh

November 29, 2011

JOSEPH LAVERY,
PETITIONER,
v.
VIMAL SINGH, ACTING WARDEN, ET AL.,
RESPONDENT.



The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge

ORDER DENYING PETITIONER'S MOTION FOR: (1) ORDER TO SHOW CAUSE; (2) DISCOVERY; (3) EVIDENTIARY HEARING; AND ) (4) APPOINTMENT OF COUNSEL [ECF No. 3]

BACKGROUND

On June 27, 2011, Petitioner Joseph Lavery, a state prisoner who is proceeding pro se and in forma pauperis , commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254. ECF No. 1. In a motion filed concurrently with his Petition, Petitioner requests an order to show cause, discovery, an evidentiary hearing, and appointment of counsel. ECF No. 3. Therein, Petitioner explains that he requires the assistance of counsel because he suffers from various mental illnesses and deficiencies and another inmate has had to help him prepare his habeas filings. Id. at 5. In support of this claim, he directs the Court to the psychiatric and medical records attached to his Petition as Exhibit C and cites to Allen v. Calderon, 408 F.3d 1150, 1153-54 (9th Cir. 2005). The medical records are from 1992 and 1994. Petitioner did not submit any evidence, information, or medical records supporting his argument that he currently is suffering from a mental illness that prevents him from understanding and responding to court orders. ECF No. 1-1, Exh. C. & ECF No. 3.

Since it was unclear whether there was substantial evidence of current incompetence requiring a competency hearing, the Court ordered Petitioner to file a pleading by September 14, 2011 that contained any and all "evidence, facts, and medical records supporting his claim that (1) he currently is suffering from a mental illness and (2) the mental illness prevents him from being able to understand and respond to Court orders." ECF No. 8. Petitioner was told that the additional information could "include declarations signed under penalty of perjury by Petitioner, other inmates, and medical personnel having personal knowledge of Petitioner's incompetence, in addition to recent institutional medical and psychiatric records." Id. (emphasis in original). Respondent was ordered to respond to Petitioner's motion and "include the results of Respondent's independent investigation into Petitioner's competence, including relevant medical records, as well as legal argument." Id.

Petitioner did not file any response by the September 14, 2011 deadline. In accordance with the Order, Respondent filed a response to Petitioner's motion on October 5, 2011. ECF No. 10. On October 21, 2011, Petitioner filed an untimely "Reply Response to Respondent's Notice of Supplemental Evidence and Briefing on the Petitioners Motion for Appointment of Counsel." ECF No. 12. However, Plaintiff did not include any additional exhibits, facts, or medical records in support of his claims. Id. Petitioner states that he was unable to obtain (and Respondent failed to produce) additional relevant medical records from community hospitals, the Department of Mental Health ("DMH") records from Atascadero Community Hospital, and the United States military*fn1 . Id. Petitioner asks the Court to: (1) grant an evidentiary hearing on competency; (2) grant appointment of counsel in the interest of justice; and (3) direct Respondent to produce and lodge mental health records from the United States military and DMH records from Atascadero Community Hospital as historical proof of mental diseases/disorders. Id. at 3.

DISCUSSION

Respondent argues that an examination of Petitioner's available medical records indicates that Petitioner does not currently suffer from any mental illness and, therefore, Petitioner's motion should be denied. ECF No. 10-1 at 2. Respondent notes that in 2001 Petitioner was found to be "exaggerating, if not completely feigning severe cognitive dysfunction" after complaining of auditory hallucinations and suicidal ideations, and that in Petitioner's most recent evaluation from March 10, 2004, a psychiatrist found Petitioner to be malingering and released him from mental health services because Petitioner "did not suffer from a mental illness and did not need psychiatric treatment." Id. at 3 (quoting Lodgment 3 at 33-35 and citing Lodgment 5 at 14-15).

In his pleadings, Petitioner contends that he needs to have counsel appointed because "he currently suffers from mental disease and disorder" and is unable to understand and handle the current litigation due to his mental illness. ECF No. 12 at 2, 4; ECF No. 3 at 3-4. However, Petitioner does not provide any recent medical records supporting this statement and admits that he "has refused and declined treatment for years." ECF No. 12 at 2.

A. PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING AND APPOINTMENT OF COUNSEL

The Ninth Circuit Court of Appeals has held that a district court must hold a competency hearing "when substantial evidence of incompetence is presented." Allen, 408 F.3d at 1153. If a competency hearing is warranted, the Court must appoint counsel for the limited purpose of representing the petitioner at the competency hearing. See Rule 8(c) of the Rules Governing Section 2254 Cases ("[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A(g)"). Although the Allen court did not specify what constitutes "substantial evidence" of incompetence or what is the "appropriate standard," it gave some guidance. In determining whether Petitioner has presented "substantial evidence of incompetence," the Court may consider any appropriate evidence including sworn declarations by Petitioner or other inmates, sworn declarations or letters from treating or prison psychiatrists or psychologists, and relevant medical records. Id. at 1151-53.

In Allen, the petitioner submitted his sworn declaration and a declaration from a fellow inmate which stated that Allen was mentally impaired and did not understand the court's orders. Id. at 1151. He also submitted a letter from a prison psychiatrist which stated that Allen was in the Enhanced Outpatient Program ("EOP") at the prison, had been "diagnosed with Chronic Undifferentiated Schizophrenia and [was] taking two psychotropic medications." Id. at 1151-52. Allen filed a second declaration in support of his motion for appointment of counsel in which he stated that he suffered from a "'debilitating mental illness that requires a course of treatment that includes the use of various psychotropic medications'" and that the mental illness combined with the medications "'severely [hinder] his ability to comprehend or correctly respond to the determinations and Orders made by the Court.'" Id. at 1152. The Ninth Circuit concluded that this was sufficient to require the district court to make a determination as to Allen's competency by appointing counsel and conducting a competency hearing. Id. at 1153-54.

Here, Petitioner has failed to submit substantial evidence of incompetence in support of a competency hearing. The only evidence of Petitioner's incompetence is Petitioner's declaration, signed under penalty of perjury, stating that Petitioner: is suffering from organic dementia, organic hallucination, schizophrenia disorder, organic affective disorder, oranic [sic] personabity [sic] disorder due to a severe head injury suffered in the U.S. Navy in 1981 and Petitioner has been committed to various (DMV) mental state hospitals (i.c. Metropolitan DMH, Atascadero DMH, Patton DMH, etc.) and continues to suffer today within the (CDCR) state prison and outdated medical records that do not speak to his current mental state. ECF No. 1, Exh. C. & ECF No. 3 at 5. The medical records that Petitioner submitted include a psychiatric evaluation from August 12, 1994 in which Dr. G. Jayasinghe of Metropolitan State Hospital, diagnosed Petitioner as having schizoaffective disorder, bipolar type, organic personality disorder, and a past history of psychoactive substance abuse and dependance (alcohol, amphetamine, and marijuana). ECF No. 1-1 at 32. Despite these diagnoses, Dr. Jayasinghe did not find that Petitioner was significantly impaired intellectually, noting that "the patient is presently functioning at about normal or impaired level of intellectual functioning." Id. at 29. A September 1994 evaluation by the same doctor contained similar findings and noted that Petitioner was "functioning at normal to mildly impaired level of intellectual functioning." Id. at 36.

The records submitted by Petitioner also include a March 20, 1992 neurologic consultation by Dr. John M. Coyle, a staff neurologist. Id. at 39. Dr. Coyle ordered additional medical testing, but found that Petitioner was alert and oriented and did not discuss any serious mental limitations. Id. These records do not support Petitioner's contention that he is currently incompetent and unable to litigate his case. The Court provided Petitioner with the opportunity to provide additional, more recent medical records and Petitioner failed to do so. ECF No. 12. In his declaration, Petitioner admits that he is not currently receiving treatment or taking any medication for a mental disorder because he has chosen to "self heal" due to his dislike of counseling, group therapy, and medication. Id. at 4.

In his filing, Respondent discusses the most current medical records on file for Petitioner. These records include a May 21, 2002 psychological review by Dr. Garrett Essres in which Dr. Essres states that a previous doctor found that Petitioner "presents with a very odd combination of psychiatric symptoms and signs that do not really conform to a documented psychiatric pattern and are most suggestive of malingering." Lodgment 3 at 33. Dr. Essres also noted that a previous evaluation of Petitioner found that Petitioner was "claiming memory loss far in excess of that shown by those with authentic symptoms" and it was concluded that Petitioner "was exaggerating symptoms of memory loss." Id. at 34. The review further noted that Petitioner had previously "filed a well written appeal in a federal court claiming that he ...


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