The opinion of the court was delivered by: U.S. Magistrate Judge Hon. William V. Gallo
ORDER DENYING PLAINTIFF'S MOTION REQUESTING COMPETENCY HEARING BASED ON PLAINTIFF'S
MENTAL & PHYSICAL DISABILITY PURSUANT TO FED. R. CIV. P. RULE 17(c) AND
ALLAN TRACY GILMORE'S EX PARTE MOTION AND REQUEST FOR COURT TO
APPOINT NEXT FRIEND OR APPOINT COUNSEL TO LITIGATE ON BEHALF OF
HOANG MINH TRAN DUE TO INCOMPETENCE [DOC. NOS. 38, 49]
Pending before the Court is Plaintiff Hoang Minh Tran's ("Plaintiff") "Motion Requested Competency Hearing Based on Plaintiff's Mental & Physical Disability Pursuant to Fed. R. Civ. P. Rule 17(c)" and Non-Party Allan Tracy Gilmore's ("Mr. Gilmore") "Ex Parte Motion and Request for Court to Appoint Next Friend or Appoint Counsel to Litigate on Behalf of Hoang Minh Tran Due to Incompetence." (Doc. Nos. 38, 49.) For the reasons stated below, these Motions are DENIED without prejudice.
Plaintiff, a former state prisoner, is proceeding pro se on a civil rights action filed under 28 U.S.C. § 1983. On November 8, 2012, Plaintiff filed a "Motion Requested Competency Hearing Based on Plaintiff's Mental & Physical Disability Pursuant to Fed. R. Civ. P. Rule 17(c)," which the Court construes as a Motion for Appointment of Counsel. (Doc. No. 38.) This is Plaintiff's fifth request for appointment of counsel. Plaintiff argues a competency hearing is appropriate because he suffers from schizophrenia, Post-Traumatic Stress Disorder ("PTSD"), severe depression, and chronic anxiety for which he takes psychotropic and painkiller medications. Id. Plaintiff states the medications he consumes cause drowsiness, dizziness, light headache, and lack of concentration. Id.
On November 27, 2012, after reviewing the Motion and the medical records submitted with Plaintiff's "Motion For Entitlement of Americans Disability Act [ADA] Reasonable Accommodation Under Rehabilitation Act Title II Required Appointment of Counsel," this Court ordered Plaintiff to submit"all of his medical records from January 1, 2012 to the present that support his allegations that he is incompetent" by December 17, 2012. (Doc. No. 39.)On the same date, this Court ordered Defendants William D. Gore, et al., ("Defendants") to file an opposition to Plaintiff's Motion by January 14, 2013. Id.
On December 17, 2012, Plaintiff filed his 2012 medical records. (Doc. No. 46.) Together with his medical records, Plaintiff submitted a sworn declarationin which he claims appointed counsel could make tactical decisions he is unable to make due to his mental illness. Id. Plaintiff's declaration also argues that the case is complex and requires an expert witness. Id. Also included with Plaintiff's medical records is a letter from Dr. Li Liang, a psychiatrist at Exodus Recovery. Id. Dr. Liang's letter states that Plaintiff has been a client at Exodus Recovery and has been followed by a psychiatrist. Id. Dr. Liang's letter did not address Plaintiff's medical or psychiatric issues. On February 5, 2013, Plaintiff submitted additional medical records. (Doc. No. 54.)
On January 10, 2013, at the conclusion of an Order to Show Cause Hearing before this Court, Plaintiff filed Mr. Gilmore's "Ex Parte Motion and Request for Court to Appoint Next Friend or Appoint Counsel to Litigate on Behalf of Hoang Minh Tran Due to Incompetence." (Doc. No. 49.) Although filed by Mr. Gilmore, the Court construes this as Plaintiff's sixth request for appointment of counsel. Mr. Gilmore asserts that he is incarcerated and cannot appear in court on behalf of Plaintiff. Id. Together with his Motion, Mr. Gilmore submitted a sworn declaration in which he states he has been litigating his own criminal case in addition to assisting Plaintiff with this case. Id. Mr. Gilmore's declaration also alleges that he is a witness to Plaintiff's mental incompetence, physical disability, and "severe lack of ability to prosecute this case." Id.
On January 14, 2013, Defendants filed their opposition to Plaintiff's request for a competency hearing. (Doc. No. 50.)Defendants argue that Plaintiff understands the nature and extent of the proceedings because at show cause hearings he offered explanations for his conduct to avoid the imposition of sanctions. Id. Defendants further argue that Plaintiff's medical records do not provide any basis to believe Plaintiff is incompetent. Id. Defendants also note that Plaintiff "has filed numerous motions and had discussions with the court that demonstrate that he is competent." Id. Defendants also submitted a copy of a transcript from an Order to Show Cause Hearing held before Judge Major on November 27, 2012 in case 10CV2682-BTM(BLM). Id. During the hearing, Plaintiff was required to explain why sanctions should not be imposed for his failure to appear at a Settlement Conference and his failure to respond to Defendant's discovery requests. Id. Judge Major noted that since Plaintiff submits "constant orders or motions" to her, he is capable of writing responses to Defendant's discovery requests. Id. Judge Major further stated Plaintiff has done a "good job" of representing himself and she still believed he was not entitled to appointment of counsel. Id.
On January 16, 2013, Defendants filed an opposition to Mr. Gilmore's motion for appointment of next friend or attorney. (Doc. No. 51.) Defendants argue that Mr. Gilmore "does not have the foundational basis to opine that [P]laintiff is incompetent."
Id. Defendants also argue that Mr. Gilmore does not qualify to be appointed as Plaintiff's next friend because he is not an attorney and is incarcerated. Id.
Plaintiff's Motion for Competency Hearing
"Pursuant to Fed. R. Civ. P. 17(c), courts are required to 'appoint a guardian ad litem for an . incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the . incompetent person. This Rule applies to habeas petitioners as it does to other civil litigants." Allen v. Calderon, 408 F.3d 1150 (9th Cir. 2005).
In Krain v. Smallwood, a non-habeas corpus case, the Ninth Circuit reasoned that "[t]he preferred procedure when a substantial question exists regarding the mental competence of a party proceeding pro se is for the district court to conduct a hearing to determine whether or not the party is competent, so that a representative ...