United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
is a prison inmate proceeding pro se and in forma pauperis
with a civil rights action. On September 12, 2017, plaintiff
filed a third motion for the appointment of counsel. (ECF No.
20). At the same time, plaintiff filed a motion requesting
permission to begin discovery and/or to hold a scheduling
conference. (See ECF No. 21). On December 12, 2017,
plaintiff filed a fourth motion for the appointment of
counsel and/or a motion for a guardian ad litem competency
hearing. (See ECF No. 29).
previous motions for appointment of counsel were filed on May
25, 2016, and January 3, 2017. (See ECF Nos. 9, 14).
Both motions were denied. (See ECF Nos. 12, 15). For
the reasons stated herein, the court will deny
plaintiff's motions to appoint counsel and his motion for
a guardian ad litem competency hearing (ECF Nos 20, 29). The
court will also deny plaintiff's motion to begin
discovery (ECF No. 21).
Plaintiff”s Motions to Appoint Counsel and Motion
for a Guardian Ad Litem Hearing
Motions to Appoint Counsel
United States Supreme Court has ruled that district courts
lack authority to require counsel to represent indigent
prisoners in § 1983 cases. Mallard v. United States
Dist. Court, 490 U.S. 296, 298 (1989). In certain
exceptional circumstances, the district court may request the
voluntary assistance of counsel pursuant to 28 U.S.C. §
1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017
(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,
1335-36 (9th Cir. 1990).
test for exceptional circumstances requires the court to
evaluate the plaintiff's likelihood of success on the
merits and the ability of the plaintiff to articulate his
claims pro se in light of the complexity of the legal issues
involved. See Wilborn v. Escalderon, 789 F.2d 1328,
1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d
952, 954 (9th Cir. 1983). Circumstances common to most
prisoners, such as lack of legal education and limited law
library access, do not establish exceptional circumstances
that would warrant a request for voluntary assistance of
present case, the court does not find the required
exceptional circumstances. Despite plaintiff's mental
health claims, the court notes that to date, plaintiff has
been able to manage his case adequately without the
assistance of counsel. Specifically, plaintiff has submitted
a complaint and an amended complaint of his own volition and
with no assistance, and he has articulated his claims clearly
enough for them to survive statutory screening. (See
ECF Nos. 1, 10). Plaintiff also appears to adequately
comprehend his obligations in this matter. For example, he
understands the purpose of and the need for discovery to the
point that in September 2017, he filed the instant request to
begin discovery of his own volition. (See ECF No.
21). Throughout this action, plaintiff has also appeared to
understand the need for and has then requested extensions of
time to file the requisite documents in this case.
(See ECF Nos. 13, 32).
plaintiff is so focused and intricately familiar with the
details of his case that in August 2017, he filed a notice
informing the court that he might have put the wrong case
name on the nine USM-285 forms he had filed (see ECF
No. 18), and in November 2017, he filed a request for entry
of default against all of the defendants alleging that they
had failed to timely file an answer to his complaint
(see ECF No. 22). Both of these filings appear to
have been done without the assistance of anyone else.
(See generally ECF Nos. 18, 22). Finally, although
plaintiff has provided a number of medical records that
document his mental health limitations (see ECF No.
29 at 8-48), the majority of them appear to have been created
back in April and May of 2017. (See id.).
the documents that plaintiff has filed have declarations from
other inmates attached which attempt to verify his mental
health issues and/or which state that they have assisted
plaintiff with filing his pleadings. (See, e.g., ECF
Nos. 13, 14). However, these documents are the exception and
not the rule. (See, e.g., ECF Nos. 1, 2, 7, 8, 9,
10, 18, 22 (documents plaintiff has prepared without
assistance)). The fact that the assistance statements in
plaintiff's filings began to appear after the court
pointed out their absence in its November 2016 denial of
plaintiff's request for appointment of counsel
(see ECF No. 12 at 2) is also noteworthy.
(Compare ECF Nos. 1, 2, 7, 8, 9, 10 (plaintiff's
filings before court's first denial of counsel and
guardian ad litem appointment in November 2016),
with ECF Nos. 13, 14 (plaintiff's filings after
court's November 2016 denial)).
none of the evidence plaintiff has presented to date
demonstrates that plaintiff's mental health deficits are
currently interfering with his ability to articulate his
claims pro se in light of the complexity of the legal issues
involved. See Wilborn, 789 F.2d at 1331;
Weygandt, 718 F.2d at 954. For these reasons, the
court does not find that exceptional circumstances exist
which warrant the appointment of counsel. Consequently,
plaintiff's motions for the appointment of counsel (ECF
Nos. 20, 29) will be denied.
Motion for a Guardian Ad Litem Hearing
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
from the pro se party or other inmates, sworn declarations or
letters from treating psychiatrists or psychologists, and his
medical history. Id. at 1152-54.
person's capacity to sue is measured by the standard of
the law of his domicile, Fed.R.Civ.P. 17(b)(1), here,
California state law. “In California, a party is
incompetent if he or she lacks the capacity to understand the
nature or consequences of the proceeding, or is unable to
assist counsel in the preparation of the case.”
Golden Gate Way, LLC v. Stewart, 2012 WL 4482053, at
*2 (N.D. Cal. Sept. 28, 2012) (citing In re Jessica