Bennett v. Prop. 47 Public Defenders Deaprtment et al, No. 5:2019cv08166 - Document 14 (N.D. Cal. 2020)
Court Description: ORDER GRANTING MOTION FOR RECONSIDERATION; REOPENING ACTION; DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT REVOKING E-FILE STATUS; DENYING MOTION FORAPPOINTMENT OF COUNSEL by Judge Beth Labson Freeman. Amended Pleadings due by 9/30/2020. (tshS, COURT STAFF) (Filed on 9/2/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
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Bennett v. Prop. 47 Public Defenders Deaprtment et al Doc. 14 Case 5:19-cv-08166-BLF Document 14 Filed 09/02/20 Page 1 of 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court Northern District of California 11 12 13 14 15 16 DAVID BENNETT, Plaintiff, v. PROP. 47 PUBLIC DEFENDER, et al., Defendants. Case No. 19-08166 BLF (PR) ORDER GRANTING MOTION FOR RECONSIDERATION; REOPENING ACTION; DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT REVOKING E-FILE STATUS; DENYING MOTION FOR APPOINTMENT OF COUNSEL (Docket No. 11) 17 18 Plaintiff, a state parolee at the time he filed this action, filed the instant pro se civil 19 rights action pursuant to 42 U.S.C. § 1983 against the Public Defenders Lara Wallem and 20 Maried O’Keefe of the “Public Defenders for Prop 47 Department,” and the Sixth District 21 Appellate Program (“SDAP”). Dkt No. 1 at 1. On June 10, 2020, the Court dismissed the 22 complaint with leave to amend. Dkt. No. 7. In the same order, Plaintiff was granted leave 23 to proceed in forma pauperis and permission for electronic filing. Id. On July 24, 2020, 24 the Court dismissed the complaint for Plaintiff’s failure to file an amended complaint in 25 the time provided and entered judgment the same day. Dkt. Nos. 9, 10. 26 On August 11, 2020, Plaintiff filed a “motion for extension of time and 27 reconsideration and preliminary injunction and temporary restraining order due to covid-19 28 conditions and motion for counsel.” Dkt. No. 11 at 1. The Court addresses each of these Dockets.Justia.com Case 5:19-cv-08166-BLF Document 14 Filed 09/02/20 Page 2 of 7 1 motions below. 2 DISCUSSION 3 4 A. At the time he filed this action, Plaintiff was out on parole. Dkt. No. 1. Plaintiff 5 United States District Court Northern District of California Motion for Extension of Time and Reconsideration 6 states that on April 5, 2020, he was arrested and placed in Butte County Jail. Dkt. No. 11 7 at 1. On May 29, 2020, he filed a notice of change of address to Butte County Jail. Dkt. 8 No. 8. Plaintiff asserts that the court order should have been sent to his Butte County 9 address, and now requests reconsideration of the dismissal and more time to amend the 10 complaint. Id. Since the change of address was filed before the Court issued the initial 11 review order, there is no reason to believe that the order was not sent to the current address 12 provided by Plaintiff. Nevertheless, in the interest of justice, the Court will assume that a 13 clerical error delayed Plaintiff’s receipt of the Court’s Order of Dismissal with Leave, 14 causing Plaintiff to miss the deadline. Accordingly, his motion for reconsideration is 15 GRANTED. The Clerk shall be directed to vacate the judgment and reopen this action. 16 Plaintiff’s request for an extension of time is also GRANTED. Plaintiff shall file an 17 amended complaint in the time provided at the end of this order. 18 B. 19 Motion for Preliminary Injunction and Temporary Restraining Order Plaintiff seeks injunctive relief against Butte County Jail based on COVID-19 20 related hardships. Dkt. No. 11 at 2-6. However, these are new claims against new 21 Defendants which are unrelated to the underlying claims in this action which is based on a 22 claim for damages based on an allegedly unconstitutional conviction. Dkt. No. 9 at 2-4. 23 The Court advised that Plaintiff’s claim for damages may be barred by Heck v. Humphrey, 24 512 U.S. 477 (1994), and that Plaintiff must provide proof that the challenged conviction 25 has been invalidated and that he must also name the proper Defendant. Id. at 4. 26 Accordingly, that damage claim related to an unconstitutional conviction is the only claim 27 that the Court will entertain in this action. If Plaintiff wants relief from conditions at Butte 28 2 Case 5:19-cv-08166-BLF Document 14 Filed 09/02/20 Page 3 of 7 1 County Jail, he must file a separate action and be subject to those filing fees. Accordingly, 2 the motion for preliminary injunction and temporary restraining order is DENIED. 3 C. In light of the fact that Plaintiff is now in custody, the Court revokes his e-file 4 5 status. The Clerk shall remove the e-filing designation on this case. Plaintiff shall be 6 served paper copies of all filings in this matter. 7 D. 8 9 United States District Court Northern District of California Electronic Filing Status Motion for Appointment of Counsel Plaintiff seeks appointment of counsel because of his alleged incompetency and ongoing mental health proceedings. Dkt. No. 11 at 7. 10 1. Appointment of Counsel under 28 U.S.C. § 1915 11 There is no constitutional right to counsel in a civil case unless an indigent litigant 12 may lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social 13 Services, 452 U.S. 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) 14 (no constitutional right to counsel in § 1983 action), withdrawn in part on other grounds 15 on reh’g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). However, a court “may request 16 an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). 17 The decision to request counsel to represent an indigent litigant under § 1915 is within “the 18 sound discretion of the trial court and is granted only in exceptional circumstances.” 19 Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of the “exceptional 20 circumstances” of the plaintiff seeking assistance requires an evaluation of the likelihood 21 of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to 22 articulate his claims pro se in light of the complexity of the legal issues involved. See 23 Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand,113 24 F.3d at 1525; Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. 25 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Both of these factors must be viewed 26 together before reaching a decision on a request for counsel under § 1915. See id. 27 28 Generally, a plaintiff that shows at least some ability to articulate his claims is not 3 United States District Court Northern District of California Case 5:19-cv-08166-BLF Document 14 Filed 09/02/20 Page 4 of 7 1 entitled to appointment of counsel, regardless of whether he has mental and physical health 2 problems or is incarcerated. See, e.g., Warren v. Harrison, 244 Fed. Appx. 831, 832 (9th 3 Cir. 2007) (holding that an inmate plaintiff who had alleged mental illness did not qualify 4 for appointment of counsel because he competently presented his claims and attached three 5 pertinent exhibits); Miller v. McDaniel, 124 Fed. Appx. 488, 490 (9th Cir. 2005) (holding 6 that an inmate plaintiff with mental health problems was not entitled to appointment of 7 counsel because he demonstrated an ability to articulate his claims pro se); Palmer v. 8 Valdez, 560 F.3d 965, 970 (2009) (holding that an inmate plaintiff who was suffering pain 9 from a surgery and had limited access to legal documents did not require appointment of 10 counsel because he did a good job presenting his case, was well organized, made clear 11 points, and presented evidence effectively). Here, as in the cases cited above, Plaintiff has 12 shown an ability to articulate his claims in spite of his alleged mental health issues: 13 Plaintiff seeks damages for an allegedly unconstitutional conviction. See supra at 2. 14 Furthermore, the issues presented are not particularly complex. Accordingly, Plaintiff’s 15 request for appointment of counsel is DENIED without prejudice for lack of exceptional 16 circumstances. See Agyeman, 390 F.3d at 1103; Rand, 113 F.3d at 1525; Terrell, 935 F.2d 17 at 1017; Wilborn, 789 F.2d at 1331. 18 2. Appointment of Guardian Ad Litem under Fed. R. Civ, P. 17(c) 19 Based on his assertion of mental health issues, the Court will also consider whether 20 Plaintiff warrants appointment of a guardian ad litem under Federal Rule of Civil 21 Procedure 17(c), which provides in relevant part that: 22 23 24 25 26 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 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” 27 28 4 Case 5:19-cv-08166-BLF Document 14 Filed 09/02/20 Page 5 of 7 1 exists regarding the mental incompetence of a pro se litigant, the district court should 2 conduct a hearing to determine competence so that a guardian ad litem may be appointed if 3 appropriate. Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005); Krain v. Smallwood, 4 880 F.2d 1119, 1121 (9th Cir. 1989). Other circuits have held that a district court’s duty of 5 inquiry under Rule 17(c) is triggered by “verifiable evidence” of incompetence. See, e.g., 6 Powell v. Symons, 680 F.3d 301, 307 (3rd Cir. 2012); Ferrelli v. River Manor Health Care 7 Center, 323 F.3d 196, 203 (2d Cir. 2003). United States District Court Northern District of California 8 The Ninth Circuit found a “substantial question” regarding competence where a pro 9 se prisoner litigant submitted a letter from the prison psychiatrist stating that the litigant 10 was under his care, had been diagnosed with schizophrenia, and was taking psychotropic 11 medications, see Allen, 408 F.3d at 1152, but it found no substantial question where a pro 12 se litigant merely asserted that the district court should have conducted a competency 13 hearing, see Day v. Sonoma Cnty., 1997 WL 686016, at *2 (9th Cir. Oct. 30, 1997). The 14 Third Circuit found “verifiable evidence” of incompetence where one co-plaintiff was 15 adjudicated incompetence in a simultaneous criminal proceeding and the other co-plaintiff 16 submitted a letter from a mental health professional. See Powell, 680 F.3d at 308-09. The 17 Second Circuit has indicated that “verifiable evidence” could take the form of records from 18 a court or public agency or evidence from a mental health professional, but that bizarre 19 behavior, standing alone, is not sufficient to trigger a district court’s duty of inquiry under 20 Rule 17(c). See Ferrelli, 323 F.3d at 201-02. 21 In this case, Plaintiff submits no evidence of incompetence. Rather, he merely 22 asserts that he is currently undergoing mental health proceedings, not that he has been 23 found incompetent. As discussed above, Plaintiff has shown an ability to articulate his 24 claims despite his mental health issues. See supra at 4. Furthermore, Plaintiff provides no 25 letter from a mental health professional or other “verifiable evidence” of his incompetence 26 to trigger this Court’s duty of inquiry. See Ferrelli, 323 F.3d at 201-02. Plaintiff’s mere 27 assertion that he needs the assistance of counsel to proceed with the case, without more, is 28 5 Case 5:19-cv-08166-BLF Document 14 Filed 09/02/20 Page 6 of 7 1 not sufficient to raise a substantial question. See, e.g., Day, 1997 WL 686016, at *2. 2 Accordingly, the Court finds that in the absence of verifiable evidence of incompetence, 3 there is no substantial question regarding Plaintiff’s competence and therefore no duty of 4 inquiry. See Allen, 408 F.3d at 1152; Ferrelli, 323 F.3d at 201-02. Plaintiff does not 5 warrant appointment of a guardian ad litem under Rule 17(c). 6 CONCLUSION 7 8 For the reasons state above, the Court orders as follows: 9 1. 10 United States District Court Northern District of California 11 Plaintiff’s motion for reconsideration is GRANTED. Judgment is hereby VACATED. Dkt. No. 10. The Clerk shall reopen this action. 2. Plaintiff’s request for an extension of time to file an amended complaint is 12 GRANTED. Within twenty-eight (28) days from the date this order is filed, Plaintiff 13 shall file an amended complaint using the court’s form complaint to attempt to remedy the 14 deficiencies discussed in the Court’s Order of Dismissal with Leave to Amend. Dkt. No. 15 7. The amended complaint must include the caption and civil case number used in this 16 order, i.e., Case No. C 19-08166 BLF (PR), and the words “AMENDED COMPLAINT” 17 on the first page. Plaintiff must answer all the questions on the form in order for the action 18 to proceed. Plaintiff is reminded that the amended complaint supersedes the original, and 19 Plaintiff may not make references to the original complaint. Claims not included in the 20 amended complaint are no longer claims and defendants not named in an amended 21 complaint are no longer defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th 22 Cir.1992). 23 Failure to respond in accordance with this order by filing an amended 24 complaint in accordance with the above in the time provided will result in the 25 dismissal of this action without prejudice and without further notice to Plaintiff. 26 27 28 3. Plaintiff’s e-filing status is REVOKED. Plaintiff shall no longer be treated as an e-filing litigant. Hereinafter, paper copies of all court orders shall be served on 6 Case 5:19-cv-08166-BLF Document 14 Filed 09/02/20 Page 7 of 7 1 2 3 Plaintiff, including this order. 4. Plaintiff’s motion for appointment of counsel is DENIED without prejudice for lack of exceptional circumstances. 4 This order terminates Docket No. 11. 5 IT IS SO ORDERED. 6 Dated: _September 2, 2020______ ________________________ BETH LABSON FREEMAN United States District Judge 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Order Granting Recon; Reopening; EOT to file Am.Compl. PRO-SE\BLF\CR.19\08166Bennett_eot.recon 26 27 28 7
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