Hintze v. Sisolak ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 JASON HINTZE, Case No. 3:22-CV-00436-MMD-CLB 5 Plaintiff, ORDER DENYING RENEWED MOTION TO APPOINT GUARDIAN AD LITEM 6 v. AND/OR COUNSEL 7 STEVE SISOLAK, et. al., [ECF No. 44] 8 Defendants. 9 10 Before the Court is Plaintiff Jason Hintze’s renewed motion for appointment of 11 guardian ad litem and/or counsel. (ECF No. 44.) No response was filed. For the reasons 12 discussed below, the renewed motion for appointment of guardian ad litem and/or 13 counsel, (ECF No. 44), is denied. 14 Plaintiff previously filed two motions for appointment of guardian ad litem and/or 15 counsel in this case, (ECF Nos. 1-2, 15), which were each denied, (ECF Nos. 6, 16.) 16 Plaintiff again requests appointment of both a guardian ad litem and counsel. (ECF No. 17 44.) Each request is discussed in turn. 18 First, as to Plaintiff’s request for appointment of a guardian ad litem, that request 19 is denied. “The court must appoint a guardian ad litem—or issue another appropriate 20 order—to protect a minor or incompetent person who is unrepresented in an action.” Fed. 21 R. Civ. P. 17(c)(2). “Ordinarily, when a substantial question exists regarding the mental 22 competence of a party proceeding pro se, the proper procedure is for the district court to 23 conduct a hearing to determine competence, so a guardian ad litem can be appointed, if 24 necessary.” Harris v. Mangum, 863 F.3d 1133, 1138 (9th Cir. 2017) (internal quotation 25 marks and citation omitted). However, “in the absence of verifiable evidence of 26 incompetence, there is no substantial question regarding [a] [p]laintiff’s competence and 27 therefore no duty of inquiry.” Dillingham v. Emerson, Case No. 1:18-cv-00507-AWI-SAB, 1 Here, Plaintiff has failed to raise a “substantial question” regarding his mental 2 competence. Harris, 863 F.3d at 1138. While Plaintiff states that his mental health 3 records necessitate a competency hearing, this is insufficient to satisfy his burden 4 because it does not suggest an “inability to comprehend or competently participate in 5 court proceedings.” Kuzmicki v. Hanrahan, Case No. 3:17-cv-00342-RCJ-CLB, 2018 WL 6 2088745, at *3 (D. Nev. May 4, 2018), adopted by 2018 WL 3577246 (D. Nev. July 25, 7 2018). Because Plaintiff has failed to raise a substantial question regarding his 8 competency, the Court need not conduct a hearing on the matter at this time and his 9 request is denied. 10 Next, moving to Plaintiff’s request for counsel, there is no constitutional right to 11 appointed counsel in a § 1983 action. E.g., Rand v. Rowland, 113 F.3d 1520, 1525 (9th 12 Cir. 1997), opinion reinstated in pertinent part, 154 F.3d 952, 954 n.1 (9th Cir. 1998) (en 13 banc). The provision in 28 U.S.C. §1915(e)(1) gives the court discretion to “request an 14 attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1); see, 15 e.g., Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1998) (en banc.) While the 16 decision to request counsel lies within the discretion of the district court, the court may 17 exercise this discretion to request counsel only under “exceptional 18 circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 19 A finding of “exceptional circumstances” requires the court to evaluate (1) the 20 plaintiff’s likelihood of success on the merits and (2) the Plaintiff’s ability to articulate his 21 claims pro se considering the complexity of the legal issues involved. 22 Id. (quoting Wilborn, 789 F.2d at 1331) (internal quotation marks omitted). Neither factor 23 is dispositive, and both factors must be considered before a court decides. Id. The 24 difficulties every litigant faces when proceeding pro se does not qualify as an exceptional 25 circumstance. Wood v. Housewright, 900 F. 2d 1332, 1335-36 (9th Cir. 1990). While 26 almost any pro se litigant would benefit from the assistance of competent counsel, such 27 a benefit does not rise to the level of “exceptional circumstances.” Rand, 113 F.3d at 1 | to their complexity. /d. 2 Exceptional circumstances do not exist in this instance. First, Plaintiff makes no 3 | argument as to the likelihood of success on the merits. As to the second prong, Plaintiff's lack of legal Knowledge and experience is unexceptional compared to most prisoner civil 5 | rights cases. Plaintiff's claims related to mental health conditions do not create an 6 | exceptional circumstance for the appointment of counsel. Many pro se litigants in civil 7 | rights actions suffer from some sort of mental and/or physical condition. Plaintiff has not 8 | pointed to any evidence or issues that make his conditions or difficulties any different from the similar types of difficulties all litigants face when proceeding pro se. These issues do not qualify as exceptional circumstances for purposes of appointing counsel. Wood, 900 11| F.2d 1332 at 1335-36. 12 Accordingly, Plaintiff's motion to appoint guardian ad litem and/or counsel, (ECF 13} No. 44), is DENIED. 14 Finally, briefing on the motion for summary judgment was stayed pending briefing 15 and resolution of the renewed motion to appoint guardian ad litem and/or counsel. (ECF 16 | No. 45.) In light of this order, briefing shall resume. Plaintiff shall file a response to the 17 | motion for summary judgment and motion to seal by no later than May 16, 2024. Any reply shall be filed by no later than May 30, 2024. 19 IT IS SO ORDERED. 20 DATED: April 16, 2024 21 ‘ 22 23 UNITED STATES \MAGISTRATE JUDGE 24 25 26 27 28