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Harris v. Macomber

United States District Court, E.D. California

July 7, 2017

GRADY HARRIS, Plaintiff,
J. MACOMBER, et al., Defendants.



         I. Introduction

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of a magistrate judge. (ECF No. 8.) No appearances have been made by any defendants.

         Plaintiff initiated this action on April 21, 2016. On April 29, 2016, plaintiff's complaint was screened and dismissed with leave to amend for improper joinder of claims and defendants in violation of Federal Rule of Civil Procedure 20(a).

         Plaintiff later filed a motion for guardian ad litem (“GAL”), competency hearing and/or motion to appoint counsel. (ECF No. 9.) He also filed a first amended complaint. (ECF No. 10.) On November 15, 2016, the court denied without prejudice plaintiff's motion for GAL, competency hearing and/or motion to appoint counsel. (ECF No. 12.) Plaintiff was granted leave to renew the motion with proper evidentiary support. (Id.)

         Before the court are plaintiff's first amended complaint (ECF No. 10), motion for an extension of time to file a motion for GAL with proper evidentiary support (ECF No. 13), and renewed motion to appoint GAL and counsel (ECF No. 14.) The court did not impose a deadline on plaintiff to renew his motion for GAL, so, therefore, a motion for extension of time is unnecessary. Accordingly, the motion for extension of time (ECF No. 13) is denied as moot. For the reasons outlined below, plaintiff's first amended complaint is deemed to state a cognizable claim; however, plaintiff's motion for GAL and for appointment of counsel is again denied without prejudice.

         II. Screening of First Amended Complaint

         The initial complaint was dismissed on the ground that it pursued two separate claims against different defendants for distinct incidents. (ECF No. 4.) In the screening order, the magistrate judge then-assigned to the case, ordered plaintiff to submit an amended complaint that pursued only one of the two claims and to pursue the other claim in a separate action. (Id.) The first amended complaint complies with these instructions and presents only claims arising from a single alleged incident. (See ECF No. 10.)

         Plaintiff's amended complaint appears to state cognizable claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.

         III. Motion to Appoint Guardian ad Litem and Counsel

         A. Plaintiff's Competency

         In his initial motion for GAL, competency hearing and/or motion to appoint counsel, plaintiff contended that he suffers from serious mental disorders that require prescribed psychotropic medications that affect his ability to think, eat, sleep, read and comprehend court orders and requirements in this action. (ECF No. 9.) He also claimed that he relies on other inmates to prepare, serve and file legal pleadings, and to read and explain court orders to him. (Id.) In support of that motion, plaintiff submitted only a November 2007 order issued by the Honorable Jan M. Adler from the Southern District of California in a federal habeas action filed by plaintiff, Harris v. Wong, Case No. 06-cv-1747 JLS JMA (S.D. Cal. Nov. 6, 2007). There, Magistrate Judge Adler granted plaintiff's application for a competency hearing based on evidence that plaintiff's mental health and related medications affected his ability to proceed on his own. (See ECF No. 9 at 6-10.) Judge Adler's order was based on a review of plaintiff's voluminous psychiatric records and the declaration of an inmate assisting plaintiff with his federal filings. In the initial motion, plaintiff did not attach any medical documentation of his mental disorder, evidence of the type and amount of medication he is prescribed, nor a declaration from any inmate stating plaintiff is incapable of prosecuting this action without assistance.

         In the renewed motion for GAL, plaintiff has attached some medical records, as well as declarations from a former treating psychiatrist and an inmate who purports to prepare plaintiff's legal filings in this case. (ECF No. 14 at 4-20.) The medical records indicate that plaintiff suffered from numerous mental health ailments and that, for at least some period of time, he was forcibly medicated under a court order. (Id.) However, the attached medical records and declaration from the psychiatrist are all dated between three and nine years ago; the only documentation of plaintiff's current mental health status (or at least of plaintiff's current ability to proceed with litigation) is a declaration from another inmate who claims that plaintiff cannot keep up with this litigation on his own because of mental health impairments. (Id.)

         Federal Rule of Civil Procedure 17(c) requires a court to “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.P. 17(c)(2). “A party proceeding pro se in a civil lawsuit is entitled to a competency determination when substantial evidence of incompetence is presented.” Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005). In determining whether substantial evidence of incompetence is presented, the district court may consider sworn declarations ...

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