IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 14, 2012
CHADERICK A. INGRAM, PLAINTIFF,
CITY OF SACRAMENTO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
On May 8, 2012, defendant City of Sacramento removed this case from the Sacramento County Superior Court to this court (Dkt. No. 2). Plaintiff Chaderick Ingram is proceeding without counsel.*fn1
The court takes judicial notice of the proceedings in United States v. Ingram, 2:10-cr-00014 MCE-1 (E.D. Cal.), and Ingram v. Grant Joint Union High School Dist., et al., 2:08-cv-02490 KJM DAD (E.D. Cal.). See Fed. R. Evid. 201.*fn2 In the criminal case, Mr. Ingram was declared incompetent and un-restorable on the basis of mental health issues. (See United States v. Ingram, No. 2:10-cr-0014 MCE-1, Dkt. Nos. 32, 39, 40.) In the civil action, Mr. Ingram was represented by counsel, and a guardian ad litem was appointed for Mr. Ingram following the declaration of incompetence in the criminal action. (See Ingram v. Grant Joint Union High School Dist., et al., 2:08-cv-02490 KJM DAD, Dkt. Nos. 87-88.)
In this action, Mr. Ingram is neither represented by counsel nor has a guardian ad litem been appointed. It appears from his pleading that there has been no change in his mental health status since the filing of the declaration of incompetence in the criminal case. Indeed, the complaint acknowledges that Mr. Ingram is "mentally disabled." (See, e.g., Compl. at 1, 28.) An incompetent person can only proceed in federal court if represented by counsel. See OseiAfriyie v. Med. College of Penn., 937 F.2d 876, 883 (3d Cir. 1991) ("It goes without saying that it is not in the interest of minors or incompetents that they be represented by non-attorneys.") (citation omitted), quoted approvingly in Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (holding that "a parent or guardian cannot bring an action on behalf of a minor child without retaining a lawyer"); see also William W. Schwarzer et al., Cal. Practice Guide: Fed. Civ. Porc. Before Trial § 7:41 (The Rutter Group 2011) ("A non-attorney parent or guardian cannot bring a lawsuit or defend an action in federal court on behalf of a minor or incompetent without retaining a lawyer") (citations omitted).
Based on the foregoing, IT IS HEREBY RECOMMENDED that:
1. This case be dismissed without prejudice; and
2. All dates in this case be vacated and this case be closed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
IT IS SO RECOMMENDED.