The opinion of the court was delivered by: David H. Bartick United States Magistrate Judge
ORDER DENYING: (1) PLAINTIFF'S MOTION FOR (2) EX PARTE MOTION TO COUNSEL A COMPETENCY HEARING; AND APPOINT NEXT FRIEND OR [ECF Nos. 178 and 183]
Currently before the Court is Plaintiff's Motion for a Competency Hearing (ECF No. 178) and Ex Parte Motion to Appoint Next Friend or Appoint Counsel Due to Incompetence. (ECF No. 183.) Defendants have opposed both motions. (ECF Nos. 187, 206, 208.) The Court has considered the parties submissions and the supporting documentation, and for the reasons set forth below, DENIES Plaintiff's motions.
Plaintiff, a former state prisoner, is proceeding pro se in a civil rights action filed under 42 U.S.C. § 1983. Plaintiff alleges Defendants violated his Eighth and Fourteenth Amendment rights on three separate occasions while he was in pretrial custody. Plaintiff initiated this lawsuit on March 2, 2010. (ECF No. 1.) Since the inception of this case, Plaintiff has actively litigated his case without the assistance of counsel.*fn1 He has drafted and submitted pleadings, motions, and oppositions, including a first and second amended complaint (ECF Nos. 34, 79.), an opposition to Defendants' motion to dismiss (ECF No. 21), discovery motions (ECF Nos. 39, 60, 77, 107, 150, 158), several requests for extensions of time (ECF Nos. 18, 99, 105, 111, 192), and various miscellaneous motions (ECF Nos. 72, 102, 109, 140). Plaintiff has also propounded discovery, responded to Defendants' discovery requests and has provided deposition testimony. Further, Plaintiff has participated in case management conferences, discovery conferences, and status conferences. (See ECF Nos. 51, 66, 70, 92.) In the last year, Plaintiff personally appeared before this Court on two occasions. (ECF Nos. 116 (discovery conference on 4/10/12), 133 (mandatory settlement conference on 5/30/12).) At both conferences, Plaintiff was articulate, coherent, and appeared to understand the nature of the proceedings. During this case, Plaintiff has also filed numerous requests for appointment of counsel. (ECF Nos. 12, 29, 55, 148, 165, 170, 173, 176.) The Court has denied each request, finding Plaintiff failed to demonstrate extraordinary circumstances warranting appointment of counsel. (ECF Nos. 23, 30, 61, 151, 167, 171, 174, 179.)
In addition to this lawsuit, Plaintiff is litigating two other civil rights actions in this district.*fn2 In Tran v. Gore, et al., Case No. 10cv2457-BTM (WVG), Plaintiff alleges that while he was hospitalized for a hernia operation, excessive force was used on him and he was deprived of food. In Tran v. Gore, et al., Case No. 10cv2682-BTM (BLM), Plaintiff alleges that jail medical staff did not provide him with the medication Docusate Sodium (or Colace) for two months and he was not given hygiene products. In both cases, Plaintiff has filed numerous pleadings and has attended court hearings. Plaintiff also filed the same Motion for Competency Hearing and Ex Parte Motion to Appoint Next Friend in those cases, as he has filed in this case. (See ECF Nos. 38, 49 in 10cv2457-BTM (WVG); ECF No. 38, 51 in 10cv2682-BTM (BLM).) On February 25, 2013, Judge Gallo denied Plaintiff's Motion for Competency Hearing and to Motion to Appoint Next Friend. (ECF No. 55 in 10cv2457-BTM (WVG).) On March 8, 2013, Judge Major denied Plaintiff's motions. (ECF No. 56 in 10cv2682-BTM (BLM).)
On November 19, 2012, Plaintiff filed a Motion for Competency Hearing. (ECF No. 178.) On January 15, 2013, Allan Tracy Gilmore, filed an Ex Parte Motion to Appoint Next Friend or Appoint Counsel Due to Incompetence on behalf of Plaintiff.*fn3
On January 17, 2013, the 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." (ECF No. 185.) After requesting an extension of time, Plaintiff filed his supporting documents. (ECF Nos. 193, 196, 199, 200, 214.) The County Defendants filed an opposition to Plaintiff's motions on January 25, 2013 (ECF No. 187), and a supplemental opposition on February 22, 2013. (ECF No. 208.) Defendant John Gill filed an opposition on February 21, 2013. (ECF No. 206.) On March 5, 2013, the County Defendants filed a Request for Judicial Notice regarding Judge Gallo's February 25, 2013 Order denying Plaintiff's Motion for Competency Hearing. (ECF No. 215.)
A. Motion for Competency Hearing
Plaintiff requests that the Court hold a competency hearing pursuant to Federal Rule of Civil Procedure 17(c). (ECF No. 178.) Plaintiff argues a competency hearing is appropriate because he suffers from schizophrenia, post-traumatic stress disorder, severe depression, and chronic anxiety for which he takes psychotropic and pain medications. (Id.) Plaintiff states these conditions make it difficult for him to comprehend and comply with the Court's pretrial orders. (Id.) Plaintiff further states his medications cause drowsiness, light headache, and lack of concentration. (Id.) Plaintiff has also submitted copies of his medical records which he believes support his claim of incompetency. (ECF Nos. 196, 199, 200, 214.)
Defendants argue Plaintiff's motion should be denied because Plaintiff understands the nature and consequences of his lawsuits against Defendants and has repeatedly demonstrated his ability to represent himself. (ECF Nos. 187 at 3; 206 at 2.) Defendants state that Plaintiff has acted to advance his case, and that his behavior shows that he understands the nature and extent of the proceedings, and that "when convenient he can represent himself." (Id.) For example, Defendants argue Plaintiff's recent attempt "to get appointed counsel through the ADA reflects his understanding of how he can try to use the system to advocate his interests." (ECF No. 187 at 6.) Defendants further argue the mental health records Plaintiff submitted do not provide reasonable cause to believe that Plaintiff is incompetent. (ECF Nos. 187 at 7-8; 206 at 5-7.) 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 No. 10cv2682-BTM (BLM). (ECF No. 187-1.) 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 because Plaintiff was able to submit "constant orders or motions," he is capable of writing responses to Defendant's discovery requests. (Id. at .) Judge Major further stated Plaintiff had done a "good job" of representing himself. (Id.)
Rule 17(c) provides that "[t]he court must appoint a guardian ad litem -- or issue another appropriate order -- to protect a minor or incompetent person who is unrepresented in an action." Fed. R. Civ. Pro. 17(c)(2). The Ninth Circuit has held that under Rule 17(c), a district court must hold a competency hearing "when substantial evidence of incompetence is presented." Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005). See also Krain v. Smallwood, 880 F.2d 1119, 1121(9th Cir. 1989) ("The 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 may be appointed if needed."). In Allen, the Ninth Circuit did not specify what constituted "substantial evidence" of incompetence warranting a competency hearing, but it did provide some ...