United States District Court, E.D. California
ORDER
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
This
matter came on for a status conference before the undersigned
on July 6, 2016. Plaintiff Kennard Davis appeared
telephonically.[1] Plaintiff's guardian ad litem, Ronnie
Tolliver, failed to appear. Gabriel Ullrich appeared for
defendant Walker. Chad Couchot appeared for defendant Allen.
Upon review of the record, upon discussion with plaintiff and
counsel, and good cause appearing, THE COURT FINDS AND ORDERS
AS FOLLOWS:
1. By
order filed June 28, 2016, guardian ad litem Ronnie Tolliver
was ordered to appear, either in person or telephonically, at
the status conference. Guardian ad litem Tolliver failed to
appear. Guardian ad litem Tolliver was duly appointed to
represent the interests of plaintiff in these actions. 08-593
ECF No. 40. Guardian ad litem Tolliver is advised that he
must comply with court orders and that failure to do so may
result in a recommendation that these actions be dismissed.
2.
Plaintiff was last evaluated for competency in 2011. The
court has determined that a current evaluation of
plaintiff's competency is appropriate.[2] Defense counsel
Ullrich advised the court that plaintiff's current
treating psychiatrist cannot provide a competency evaluation
due to the conflict of a dual relationship. Accordingly,
under Federal Rule of Civil Procedure 706, the court intends
to appoint an expert witness to assist the court in
evaluating whether plaintiff has been restored to competency.
a. No
later than July 22, 2016, the parties shall show cause why
such an expert should not be appointed. See
Fed.R.Civ.P. 706(a).
b. No
later than July 29, 2016, the parties may submit nominations
for such expert.
c. No
later than August 5, 2016, the custodian of records for the
facility where plaintiff is currently incarcerated shall
submit to the court, under seal, plaintiff's complete
medical record maintained by the CDCR, including records of
psychiatric treatment. Defense counsel Ullrich shall serve a
copy of this order on the custodian of records and shall
facilitate delivery of the records to the court.
3.
Pending the competency evaluation, a scheduling order shall
not issue. If plaintiff is found to be restored to
competency, the guardian ad litem will be dismissed and
plaintiff shall proceed in propria persona. Guardian ad litem
Tolliver is advised that if plaintiff is not found to be
restored to competency, it will be incumbent on the guardian
ad litem to obtain counsel within a reasonable amount of
time.[3] See Johns v. County of San Diego,
114 F.3d 874 (9th Cir. 1997) ("It goes without saying
that it is not in the interest of minors or incompetents that
they be represented by non-attorneys. Where they have claims
that require adjudication, they are entitled to trained legal
assistance so their rights may be fully protected.").
Failure to obtain counsel may result in a recommendation that
this action be dismissed without prejudice.
4.
Plaintiff has filed numerous pleadings while he has been
represented by counsel and since the appointment of a
guardian ad litem. Because plaintiff has been found
incompetent and is proceeding in this action through his
guardian ad litem, plaintiff may not file documents on his
own behalf. The multiplicity of plaintiff's filings are a
burden on both the court and defendants and impede the proper
prosecution of this action. Plaintiff's future filings,
made through his guardian ad litem, shall therefore be
limited. Plaintiff, through his guardian ad litem, may only
file the following documents:
a. Response to the order to show cause set forth above and
nomination of court appointed expert;
b. One opposition to any motion filed by defendants (and
clearly titled as such);
c. Only one motion pending at any time. Plaintiff, through
his guardian ad litem, is limited to one memorandum of points
and authorities in support of the motion and one reply to any
opposition; and
d. One set of objections to any findings and recommendations.
Failure
to comply with this order shall result in improperly filed
documents being stricken from the record and may result in a
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