Notice: Ninth Circuit Rule 36-3 Provides That Dispositions Other Than Opinions or Orders Designated for Publication Are Not Precedential and Should Not Be Cited Except when Relevant Under the Doctrines of Law of the Case, Res Judicata, or Collateral Estoppel, 129 F.3d 125 (9th Cir. 1997)

Appeal from the United States District Court for the Northern District of California, Susan Illston, District Judge Presiding

Before SCHROEDER, BEEZER and BRUNETTI, Circuit Judges

MEMORANDUM^* 

Petitioner Mary K. Day appeals the district court's dismissal of her action as frivolous pursuant to 28 U.S.C. § 1915(d). We have jurisdiction and affirm.

* Day filed her initial complaint against Sonoma County, the Sonoma Police Department, Sonoma County Social Services and numerous other public entities and individuals in 1995. She alleged that the defendants deprived her of rights guaranteed by Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq. and the Rehabilitation Act of 1973, 29 U.S.C. § 794.

The district court granted Day leave to amend her complaint on four occasions. Her fourth amended complaint limited the list of defendants to the State Bar of California and related entities and individuals. The complaint focused primarily on Day's repeated unsuccessful attempts to gain admission to the State Bar of California. Among other things, Day contended that the State Bar of California and related defendants discriminated against her by failing to "self-evaluate" as required by 28 C.F.R. § 35.105, refusing to adjust the examination fee schedule to account for the poverty of disabled applicants, and depriving her of procedural protections afforded to licensed attorneys during moral character evaluations.

In May 1996, the district court dismissed Day's fourth amended complaint without leave to amend pursuant to 28 U.S.C. § 1915(d). On appeal, Day challenges the district court's dismissal of her action. Day also argues that the district court was required to hold a competency hearing to determine whether she was mentally capable of proceeding pro se.

II

Dismissal pursuant to 28 U.S.C. § 1915(d) is proper where the complaint is based on a meritless legal theory or baseless factual contentions. Neitzke v. Williams, 490 U.S. 319, 327. We review the district court's dismissal for abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 33 (1992). The district court did not abuse its discretion.

To recover under Title II of the ADA, a plaintiff must show:

(1) he is a "qualified individual with a disability "; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs or activities or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.

Weinreich v. Los Angeles Country Transportation Authority, 114 F.3d 976, 978 (9th Cir. 1997). Similarly, to recover under Section 504 of the Rehabilitation Act a plaintiff must demonstrate:

(1) he is an individual with a disability; (2) he is "otherwise qualified" to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance.

Id. Accepting Day's allegations as true, the district court properly determined that Day is a "qualified individual with a disability" due to the impairment of her neck, left shoulder, arm, and hand. Day's complaint, however, does not allege that the defendants excluded her from participation in public programs, denied her the benefits of a public entity's services or otherwise discriminated against her on the basis of her physical impairment. Nor does the complaint suggest that defendants denied Day the benefits of a public program by reason of her physical disability. The district court did not abuse its discretion in dismissing Day's action pursuant to 28 U.S.C. § 1915(d).

III

On appeal, Day also contends that the district court was required to conduct a competency hearing pursuant to Federal Rule of Civil Procedure 17(c) before dismissing the action. Rule 17(c) requires the district court to appoint a guardian ad litem for unrepresented parties it determines to be incompetent. Fed. R. Civ. P. 17(c). Where there is a substantial question regarding the mental competence of a pro se party, we prefer that the district court conduct a competency hearing. Krain v. Smallwood, 880 F.2d 1119 (9th Cir. 1989). We review, de novo the district court's failure to inquire into the competency of an unrepresented party. United States v. 30.64 Acres of Land, 795 F.2d 796, 804 (9th Cir. 1986).

Review of the record indicates that there was no substantial question regarding Day's mental competence. Any mental difficulties that Day may have experienced during the course of this lawsuit did not compromise her ability to press her claim. The district court was not required to conduct a competency hearing.

IV

Day's appeal raises a number of other issues that were not presented to the district court. We do not address these claims on appeal. See Han v. United States, 944 F.2d 526, 527 n. 1 (9th Cir. 1991).

AFFIRMED