United States District Court, N.D. California
ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL OR
GUARDIAN AD LITEM (DOCKET NO. 24)
LABSON FREEMAN United States District Judge
a state prisoner, filed the instant pro se civil
rights action pursuant to 42 U.S.C. § 1983. The Court
found the amended complaint, (Docket No. 14), stated a
cognizable claim for deliberate indifference to serious
medical needs and ordered the matter served on Defendants Dr.
Spencer and Nurse Amanda at the San Mateo County Jail.
(Docket No. 14.) Plaintiff has filed a letter requesting
appointment of counsel due to the circumstances at his
current place of confinement. (Docket No. 24.)
has filed notice that he has been placed in the “Mental
Health Services Delivery System, ” and transferred to
Corcoran State Prison. (Docket No. 24 at 2.) Plaintiff states
that he is without his property, has been denied access to
the law library, and without means of communicating with the
courts, attorney, or family. (Id.) He states that
the correctional counselors in charge of his custody have
ignored his request for assistance and access to the law
library. (Id. at 2-3.) Plaintiff seeks appointment
of counsel “for a limited purpose necessary for due
process as I'm incapable based on my clinical assessment
due to being stripped of my legal materials to prosecute the
above references cases.” (Id. at 3.)
Appointment of Counsel under 28 U.S.C. §
Plaintiff has twice been advised, (see Docket Nos.
9, 14), there is no constitutional right to counsel in a
civil case unless an indigent litigant may lose his physical
liberty if he loses the litigation. See Lassiter v.
Dep't of Social Services, 452 U.S. 18, 25 (1981);
Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997)
(no constitutional right to counsel in § 1983 action),
withdrawn in part on other grounds on reh'g en
banc, 154 F.3d 952 (9th Cir. 1998) (en banc). The
decision to request counsel to represent an indigent litigant
under § 1915 is within “the sound discretion of
the trial court and is granted only in exceptional
circumstances.” Franklin v. Murphy, 745 F.2d
1221, 1236 (9th Cir. 1984). As before, Plaintiff's
asserted grounds do not establish exceptional circumstances
warranting appointment of counsel at this time, even for a
“limited purpose.” Accordingly, Plaintiff's
request for appointment of counsel is DENIED without
prejudice for lack of exceptional circumstances. See
Agyeman, 390 F.3d at 1103; Rand, 113 F.3d at
1525; Terrell, 935 F.2d at 1017; Wilborn,
789 F.2d at 1331.
Appointment of Guardian Ad Litem under Fed. R. Civ, P.
on his assertion of mental health issues, the Court will also
consider whether Plaintiff warrants appointment of a guardian
ad litem under Federal Rule of Civil Procedure 17(c), which
provides in relevant part that:
A minor or an incompetent person who does not have a duly
appointed representative may sue by a next friend or aby a
guardian ad litem. 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). The Ninth Circuit has held that
when “a substantial question” exists regarding
the mental incompetence of a pro se litigant, the district
court should conduct a hearing to determine competence so
that a guardian ad litem may be appointed if appropriate.
Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir.
2005); Krain v. Smallwood, 880 F.2d 1119, 1121 (9th
Cir. 1989). Other circuits have held that a district
court's duty of inquiry under Rule 17(c) is triggered by
“verifiable evidence” of incompetence.
See, e.g., Powell v. Symons, 680
F.3d 301, 307 (3rd Cir. 2012); Ferrelli v. River Manor
Health Care Center, 323 F.3d 196, 203 (2d Cir. 2003).
Ninth Circuit found a “substantial question”
regarding competence where a pro se prisoner litigant
submitted a letter from the prison psychiatrist stating that
the litigant was under his care, had been diagnosed with
schizophrenia, and was taking psychotropic medications,
see Allen, 408 F.3d at 1152, but it found no
substantial question where a pro se litigant merely asserted
that the district court should have conducted a competency
hearing, see Day v. Sonoma Cnty., 1997 WL 686016, at
*2 (9th Cir. Oct. 30, 1997). The Third Circuit found
“verifiable evidence” of incompetence where one
co-plaintiff was adjudicated incompetence in a simultaneous
criminal proceeding and the other co-plaintiff submitted a
letter from a mental health professional. See
Powell, 680 F.3d at 308-09. The Second Circuit has
indicated that “verifiable evidence” could take
the form of records from a court or public agency or evidence
from a mental health professional, but that bizarre behavior,
standing alone, is not sufficient to trigger a district
court's duty of inquiry under Rule 17(c). See
Ferrelli, 323 F.3d at 201-02.
case, Plaintiff submits no evidence of incompetence. Rather,
he merely asserts he has been placed in the “Mental
Health Services Delivery System” and that his
“clinical assessment” renders him
“incapable.” (Docket No. 24 at 3.) Thus far,
Plaintiff has shown an ability to articulate his claims
despite his mental health issues. Furthermore, Plaintiff
provides no letter from a mental health professional or other
“verifiable evidence” of his incompetence to
trigger this Court's duty of inquiry. See
Ferrelli, 323 F.3d at 201- 02. Plaintiffs mere assertion
that he needs the assistance of counsel to proceed with the
case, without more, is not sufficient to raise a substantial
question. See, e.g., Day, 1997 WL 686016, at *2.
Accordingly, the Court finds that in the absence of
verifiable evidence of incompetence, there is no substantial
question regarding Plaintiffs competence and therefore no
duty of inquiry. See Allen, 408 F.3d at 1152;
Ferrelli, 323 F.3d at 201-02. Plaintiff does not
warrant appointment of a guardian ad litem under Rule 17(c).
reasons discussed above, Plaintiffs request for appointment
of counsel is DENIED. (Docket No. 24.) Plaintiff should seek
remedies through the prison ...