(PS) Ingram v. City of Sacramento, et. al., No. 2:2012cv01956 - Document 3 (E.D. Cal. 2012)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 9/17/12: ORDERING that plaintiff's request for appointment of counsel is DENIED. RECOMMENDING that plaintiff's request to proceed in forma pauperis 2 be DENIED. The action be DISMISSED WITHOUT PREJUDICE. F&R referred to Judge Garland E. Burrell, Jr.. Objections to F&R due within fourteen (14) days. (Kaminski, H)

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(PS) Ingram v. City of Sacramento, et. al. Doc. 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CHADERICK A. INGRAM, 11 12 13 Plaintiff, vs. CITY OF SACRAMENTO, et al., 14 Defendants. 15 _________________________________/ 16 No. 2:12-cv-1956 GEB KJN PS ORDER AND FINDINGS AND RECOMMENDATIONS Plaintiff, proceeding without counsel, has requested leave to proceed in forma 17 pauperis pursuant to 28 U.S.C. § 1915. The action was referred to the undersigned by E.D. Cal. 18 L.R. 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). 19 The court takes judicial notice of the proceedings in United States v. Ingram, 20 2:10-cr-0014 MCE-1 (E.D. Cal.) and Ingram v. Grant Joint Union High School Dist., et al., 2:08- 21 cv-2490 KJM DAD (E.D. Cal.). See Fed. R. Evid. 201; Reyn’s Pasta Bella, LLC v. Visa USA, 22 Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and 23 other matters of public record”). In the criminal case, plaintiff was declared incompetent and un- 24 restorable on the basis of mental health issues. See United States v. Ingram, 2:10-cr-0014 MCE- 25 1, Dkt. Nos. 32, 39, 40. In the civil action, plaintiff was represented by counsel, and a guardian 26 ad litem was appointed for him following the declaration of incompetence in the criminal action. 1 Dockets.Justia.com 1 See Ingram v. Grant Joint Union High School Dist., et al., 2:08-cv-2490 KJM DAD, Dkt. Nos. 2 87-88. 3 In this action, plaintiff is neither represented by counsel, nor has a guardian ad 4 litem been appointed. It appears from this complaint that there has been no change in his mental 5 health status since the filing of the declaration of incompetence in the criminal case. Indeed, the 6 complaint acknowledges that plaintiff is “mentally disabled.” (Dkt. No. 1 at 1.) An incompetent 7 person can only proceed in federal court if represented by counsel. See Osei-Afriyie v. Med. 8 College of Penn., 937 F.2d 876, 883 (3d Cir. 1991) (“It goes without saying that it is not in the 9 interest of minors or incompetents that they be represented by non-attorneys”) (citation omitted), 10 quoted approvingly in Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (holding 11 that “a parent or guardian cannot bring an action on behalf of a minor child without retaining a 12 lawyer”); see also William W. Schwarzer et al., Cal. Practice Guide: Fed. Civ. Proc. Before Trial 13 § 7:41 (The Rutter Group 2011) (“A nonattorney parent or guardian cannot bring a lawsuit or 14 defend an action in federal court on behalf of a minor or incompetent without retaining a 15 lawyer”) (citations omitted). 16 Although plaintiff requests the appointment of counsel pursuant to 28 U.S.C. § 17 1915 (Dkt. No. 1 at 1-2), that request will be denied. Under 28 U.S.C. § 1915(e)(1), district 18 courts are granted discretion to appoint counsel for indigent persons. However, this discretion 19 may be exercised only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 20 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both the 21 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 22 light of the complexity of the legal issues involved. Neither of these factors is dispositive and 23 both must be viewed together before reaching a decision.” Id. Here, although plaintiff may be 24 unable to articulate his claims clearly, plaintiff’s complaint does not appear to state any valid 25 claims. Thus, when considering the likelihood of success and the complexity of the issues, there 26 are no exceptional circumstances justifying the appointment of counsel. 2 1 2 Accordingly, for the reasons outlined above, IT IS HEREBY RECOMMENDED that: 3 1. Plaintiff’s request to proceed in forma pauperis (dkt. no. 2) be DENIED, and 4 2. The action be DISMISSED WITHOUT PREJUDICE. 5 IT IS ALSO HEREBY ORDERED that plaintiff’s request for appointment of 6 7 counsel (dkt. no. 1 at 1-2) is DENIED. These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 9 (14) days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 shall be served on all parties and filed with the court within fourteen (14) days after service of the 13 objections. The parties are advised that failure to file objections within the specified time may 14 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 15 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 16 17 IT IS SO ORDERED AND RECOMMENDED. DATED: September 17, 2012 18 19 20 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 3

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