United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT
OF COUNSEL OR, IN THE ALTERNATIVE, APPOINTMENT OF A GUARDIAN
AD LITEM (Doc. 59)
Jennifer L. Thurston United States Magistrate Judge.
assert the defendants are liable for the wrongful death of
Augustus Joshua Crawford. James Raymond, father of the
deceased, seeks the appointment of counsel. (Doc. 59) In the
alternative, Raymond requests that a guardian ad litem be
appointed to assist him with this action. (Id. at
1-2) For the reasons set forth below, Raymond's motion is
DENIED without prejudice.
Appointment of Counsel
Court previous informed Mr. Raymond, there is no
constitutional right to counsel in most civil cases. 28
U.S.C. § 1915(e)(1). Though the Court can request an
attorney represent indigent persons, it cannot
require representation of a plaintiff pursuant to 28
U.S.C. § 1915. Mallard v. U.S. District Court for
the Southern District of Iowa, 490 U.S. 296, 298 (1989).
Nevertheless, in “exceptional circumstances, ”
the Court has discretion to request the voluntary assistance
of counsel. Rand v. Rowland, 113 F.3d 1520, 1525
(9th Cir. 1997). To determine whether “exceptional
circumstances exist, the district court must evaluate both
the likelihood of success of the merits [and] the ability of
the [plaintiff] to articulate his claims pro se in
light of the complexity of the legal issues involved.”
Rand, 113 F.3d at 1525 (internal quotation marks and
citations omitted). H
Raymond asserts that he has a history of COPD, hypertension,
coronary disease, and hyperlipidemia. (Doc. 59 at 2) He
reports that he has twice been hospitalized for periods
exceeding 15 days, after which he “was committed to a
rehabilitation hospital for a duration of approximately
3-weeks and discharged.” (Id.) Raymond reports
that following his release from the rehabilitation facility,
his treating physician “diagnosed [him] with
dementia.” (Id.) In support of this assertion,
Raymond directs the Court's attention to a “recent
medical report attached to the state court records wherein
the court appointed a Guardian Ad Litem to assist [him] in
response to [his] motion … due to [his] mental
medical report is a “Health and Physical
Examination” “Final Report” dated January
26, 2019. (Doc. 59 at 4) Dr. Bahkht Cheema performed the
examination, noting that Raymond reported a “recent
pneumonia diagnosis” and “state[d] he [had]
increased weakness for 2-3 days.” (Id.) In the
neurological portion of the examination, Dr. Cheema found
Plaintiff was “[a]lert and oriented to person, place,
time, and situation.” (Id. at 6) In addition,
Dr. Cheema indicated “[n]o focal neurological deficit
[was] observed.” (Id.) There is no mention of
dementia in the report. Likewise, there are no objective
findings regarding Raymond's mental limitations, such
that the Court may determine the extent to which the
diagnoses has affected his mental abilities. There simply is
no evidence related to the reported diagnosis or
Plaintiff's mental state. Thus, the report submitted by
Raymond does not support his request for appointment of
Mr. Raymond has demonstrated that he is able to intelligibly
state his concerns and position, and he previously exhibited
an ability to respond to the Court's orders and meet
deadlines set by the Court. In addition, the legal issues
presented in this action are not complex. Finally, at this
state of the proceeding, the Court remains unable to
determine regarding the merits of the claims Mr. Raymond
seeks to prosecute. Thus, the Court does not find the
required exceptional circumstances exist for the appointment
of counsel at this time.
Appointment of a Guardian Ad Litem
Rule 17 of the Federal Rules of Civil Procedure Rule 17, the
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.P.
17(c)(2); see also Local Rule 202(a). “The
purpose of Rule 17(c) is to protect an incompetent
person's interests in prosecuting or defending a
lawsuit.” Davis v. Walker, 745 F.3d 1303, 1310
(9th Cir. 2014). Thus, the Court has “a ‘legal
obligation' to consider whether an incompetent person is
adequately protected.” See Jurgens v.
Dubendorf, 2015 WL 6163464, at *3 (E.D. Cal. Oct. 19,
2015) (citing United States v. 30.64 Acres of Land,
795 F.2d 796, 804 (9th Cir. 1986)); see also Davis v.
Walker, 745 F.3d 1303, 1310 n.6 (9th Cir. 2014).
However, the obligation of the Court to appoint a guardian ad
litem pursuant to Rule 17(c) does not arise until after a
determination of incompetence has been made by the Court in
which the issue was raised. See, e.g., Forte v. County of
Merced, 2013 WL 3282957, at *3 (E.D. Cal. June 27, 2013)
(citing Ferrelli v. River Manor Health Care Ctr.,
323 F.3d 196, 201 (2d Cir. 2003)) (emphasis omitted).
Court applies state law for the person being evaluated to
determine competency. See Fed. R. Civ. P. 17(b)(1).
Under California law, 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 G., 93
Cal.App.4th 1180, 1186 (2001)); see also Cal. Civ.
Proc. Code § 372 (“When . . . a person who lacks
legal capacity to make decisions . . . is a party, that
person shall appear either by a guardian or conservator of
the estate or by a guardian ad litem”). “In most
cases, a guardian will not be appointed for an adult unless
the person gives consent or upon notice and a hearing.”
Jurgens, 2015 WL 6163464, at *3.
Appointment for a pro se litigant
if the Court finds a person is incompetent and appoints a
guardian ad litem, the appointment “deprives the
litigant of the right to control the litigation.”
AT&T Mobility, LLC v. Yeager, 143 F.Supp.3d
1042, 1051 (E.D. Cal. 2015) (quoting Thomas v.
Humfield, 916 F.2d 1032, 1034 (5th Cir. 1990)) However,
“if a guardian ad litem is not a lawyer, he or she must
be represented in turn by counsel” because “a
non-lawyer ‘has no authority to appear as an attorney
for others than himself.'” Id. (citing
Johns v. County of San Diego, 114 F.3d 874, 876-77
(9th Cir. 1997); C.E. Pope Equity Trust v. United
States, 818 F.2d 696, 697 (9th Cir. 1987)).