(PC) Hunt v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARK HUNT, ) Case No.: 1:19-cv-00504-DAD-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION 13 v. ) FOR APPOINTMENT OF COUNSEL OR GUARDIAN AD LITEM, WITHOUT PREJUDICE 14 D. DIAZ, et al., ) ) [ECF No. 29] 15 Defendants. ) ) 16 ) ) 17 ) 18 Plaintiff Mark Hunt is appearing pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s motion for appointment of counsel or guardian ad 21 litem, filed February 28, 2020. 22 I. 23 DISCUSSION 24 A. Appointment of Counsel 25 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 26 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 27 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 28 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 1 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 2 1525. 3 Without a reasonable method of securing and compensating counsel, the court will seek 4 volunteer counsel only in the most serious and exceptional cases. In determining whether 5 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 6 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 7 legal issues involved.” Id. (internal quotation marks and citations omitted). 8 Plaintiff asserts that he is a participant in the Correctional Clinical Case Management System 9 which provides mental health services, and he has been in administrative segregation. Plaintiff’s 10 request must be denied, without prejudice, as neither the interests of justice nor exceptional 11 circumstances warrant appointment of counsel at this time. Plaintiff has thus far been able to 12 articulate his claims, and has continued to litigate this action. Indeed, on December 9, 2019, the Court 13 found that Plaintiff stated a cognizable claim for excessive force against Defendants D. Diaz, A. 14 Velasquez, J. Brainard, G. Solorio, and K. Reyes, and directed service of the complaint. (ECF No. 15 23.) On March 2, 2020, Defendants filed an answer to the complaint. (ECF No. 30.) 16 Even if it assumed that Plaintiff is not well versed in the law and that he has made serious 17 allegations which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced 18 with similar cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to 19 his pro se status and his incarceration, the test is not whether Plaintiff would benefit from the 20 appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most 21 actions require development of further facts during litigation and a pro se litigant will seldom be in a 22 position to investigate easily the facts necessary to support the case.”) The test is whether exception 23 circumstances exist and here, they do not. Circumstances common to most prisoners, such as lack of 24 legal education and limited law library access, do not establish exceptional circumstances that would 25 warrant a request for voluntary assistance of counsel. Accordingly, Plaintiff’s motion for the 26 appointment of counsel is denied, without prejudice. 27 /// 28 /// 1 B. Guardian Ad Litem 2 Based on Plaintiff’s assertion of mental health issues, the Court will consider his request 3 for appointment of a guardian ad litem under Federal Rule of Civil Procedure 17(c), which provides in 4 pertinent part: 5 A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian 6 ad litem – or issue another appropriate order – to protect a minor or incompetent person who is unrepresented in an action. 7 8 Fed. R. Civ. P. 17(c)(2). The Ninth Circuit has held that when “a substantial evidence” exists 9 regarding the mental incompetence of a pro se litigant, the district court should conduct a hearing to 10 determine competence so that a guardian ad litem may be appointed if appropriate. Allen v. Calderon, 11 408 F.3d 1150, 1153 (9th Cir. 2005); Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989). The 12 Ninth Circuit has not clearly stated what constitutes “substantial evidence” of incompetence 13 warranting such a hearing. See Hoang Minh Tran v. Gore, No. 10cv464-GPC (DHB), 2013 WL 14 1625418, at *3 (S.D. Cal. Apr. 15, 2013). However, the Ninth Circuit has indicated that sworn 15 declarations from the allegedly incompetent litigant, sworn declarations or letters from treating 16 psychiatrists or psychologist, and medical records may be considered in this regard. See Allen, 408 17 F.3d at 1152-54. Such evidence must speak to the court’s concern as to whether the person in question 18 is able to meaningfully take part in the proceedings. See AT&T Mobility, LLC v. Yeager, 143 19 F.Supp.3d 1042, 1050 (E.D. Cal. 2015) (citing In re Christina B., 19 Cal.App.4th 1441, 1450 (1993)). 20 In this case, Plaintiff submits no evidence of incompetence. Rather, he asserts that he is a 21 participant in the CCCMS and is under court order for psychiatric medication. However, thus far, 22 Plaintiff has shown an ability to articulate his claims and litigate this case despite his mental health 23 issues. Furthermore, Plaintiff provides no evidence to support a finding that “substantial evidence” 24 exists regarding his mental incompetence. Plaintiff’s mere assertion that he needs the assistance of 25 counsel to proceed with the case, without more, is not sufficient to raise a substantial question. The 26 record demonstrates that Plaintiff has the capacity to understand the nature and consequences of these 27 proceedings. Accordingly, the Court finds that Plaintiff is competent to litigate this action and his 28 request for appointment of a guardian ad litem is denied. 1 Il. 2 ORDER 3 Based on the foregoing, it is HEREBY ORDERED that: 4 1. Plaintiff's motion for appointment of counsel is DENIED, without prejudice; and 5 2. Plaintiff's motion for a competency hearing and for appointment of a guardian ad liter 6 is DENIED, without prejudice. 7 8 || IT IS SO ORDERED. A fe 9 ll Dated: _ March 3, 2020 IF 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28