Opinion
Case No. EDCV 11-1359-PSG (JPR)
01-02-2019
GEORGE H. WILSON, II, Plaintiff, v. D.M. BOLDT et al., Defendants.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE AND DENYING PLAINTIFF'S MOTION FOR STAY OR COMPETENCY HEARING
The Court has reviewed de novo the Complaint, the pleadings and records on file, and the Report and Recommendation of U.S. Magistrate Judge, which recommends that Defendants' motion to dismiss as a terminating sanction be granted. See 28 U.S.C. § 636. On November 21, 2018, Plaintiff filed Objections and moved for a "stay of response and a competence hearing under [Federal] [R]ule [of Civil Procedure] 17." (See Objs. at 3.) Defendants filed a response on December 4.
Plaintiff does not object to any substantive aspect of the Magistrate Judge's legal analysis, nor does he dispute or even address his failure to respond to the Court's September 4, 2018 order granting him a final extension of time to oppose the motion to dismiss. Instead, he rehashes the mental-health claims that this Court previously rejected, without adducing any new evidence to support them. Further, despite the Court's February 28, 2018 express warning to Plaintiff that he "must sign and file all documents himself," the Objections are not signed by anyone and the space next to the blank signature line contains the name of "Raymond G. Glass" (Objs. at 3), a fellow inmate who has assisted Plaintiff over the past year because he "d[id]n't believe" Plaintiff had the "mental capa[]city" to litigate his claims pro se (see Pl.'s Jan. 16, 2018 Mot. Extension of Time, Ex. 1, Glass Decl. ¶ 3). Glass did not and has not elaborated on the basis for that belief.
The proof of service is signed but the signature is illegible. (See Objs. at 4.)
Plaintiff argues once again that the medications he takes for depression, anxiety, and posttraumatic stress disorder have caused him to become "very confused" (Objs. at 3) and therefore unable to prosecute his case or meet filing deadlines (see generally id. at 1-3). But he admits that he remains housed at the CCCMS level of care (see id. at 2) — the lowest level of mental-health care available in the state prison system, see Haughton v. Sherman, No. EDCV 16-251-DOC (GJS), 2016 WL 7167905, at *7 n.4 (C.D. Cal. Oct. 19, 2016), accepted by 2016 WL 7167924 (C.D. Cal. Dec. 7, 2016). He alleges conclusorily that the CCCMS program is "under[]staffed and doesn[']t have the ability to treat the 190 inmates assigned to [it] with three staff members" (Objs. at 2) but does not explain how any staffing deficiency prevented him from complying with court orders. Moreover, Plaintiff objected to the previous R. & R. in part because he had "been offered on numerous occasion[s]" to transfer to a "higher level of care" but "refused." (See Pl.'s Aug. 7, 2018 Objs. at 2.) If Plaintiff in fact qualifies for a higher level of mental-health care — a proposition as to which he has submitted no documentary evidence — and has chosen to decline it, his complaints about inadequate staffing and plea that he "trul[]y needs help" (Objs. at 2) are not well taken.
Plaintiff specifically objects to the Magistrate Judge's statement that Defendants' motion for partial summary judgment was taken under submission without his input in April 2018 after he had repeatedly failed to file opposition over the course of nearly a year and could not demonstrate any valid reason for his inaction. (See Objs. at 2 (citing R. & R. at 2-3).) He does not explain how that is relevant to his failure to comply with court orders since then, and in any event the Magistrate Judge accurately summarized the procedural history of this case. Plaintiff's first objection is therefore without merit.
Another "objection" concedes that he has completed college-level work while incarcerated, as the Magistrate Judge noted (see R. & R. at 2 n.2), but claims without evidence that he dropped out in 2016 "d[ue] to mental health issues [and] lack of con[cen]tration" (see Objs. at 3; see also id., Ex. 1 at 2-3 (transcript and rubric from Coastal Community College showing that Plaintiff received a B in "Strategies for College Success" in Spring 2016 for work described as "articulate" and "insightful")). He now contends that he "never assisted other prisoners with th[eir college-level] studies" (Objs. at 3), but he previously stated in a sworn declaration that "all inmates enrolled in that class[] helped each other" (Pl.'s Decl. at 4-5, Feb. 5, 2018). Regardless, he later states that his college "studies" are "not even relevant" to his mental health. (Objs. at 3.) This objection therefore fails.
Plaintiff also objects on the ground that he had "become[] very confused under his medication and mistakenly accused" Defendants of mailing their motion late when in fact "prison staff intentionally delivered letter [sic] to the wrong building and sent it back without [his] knowledge." (See id. (disputing R. & R. at 4).) He further alleges that "the magistrate judge has become bias[ed]" and "allow[ed] the defendants [sic] agent to concoct this theory [that he] is playing a game when in [fact he] is suffering mental [illness]." (Id.) He attaches an exhibit purportedly showing that he received mail from defense counsel on July 13 and August 7, 2018. (See id., Ex. 1 at 1.) But even if he really did not receive the motion to dismiss until August 7, he was able to file a request for an extension of time to respond to it on August 27, which was granted on September 4. Thus, any delay that may have occurred in July has no bearing on his failure to respond to the September 4 order or to oppose Defendants' motions more generally.
Plaintiff does not describe any particular actions by the Magistrate Judge that he contends are biased and does not even specifically deny Defendants' contention that he has begun refusing service of filed documents and misrepresented his ability to access the law library. (See Defs.' Aug. 27, 2018 Opp'n at 2 & Exs. A & B; cf. Objs. at 3.) As the Court noted in its February 28, 2018 minute order, Plaintiff admitted under oath in other proceedings to lying about having a mental illness for tactical gain. Plaintiff's contention that the Magistrate Judge and Defendants "concocted" an "elaborate story" about his "faking mental illness" (Objs. at 1) is therefore false.
In sum, the Magistrate Judge carefully considered Plaintiff's allegations about his mental health and granted him multiple extensions of time to respond to or otherwise comply with court orders. (See R. & R. at 2-8 (recounting procedural history).) Plaintiff nevertheless repeatedly failed to do so or to substantiate his mental-health claims, and his latest filing is no exception. He has not otherwise provided any legitimate reason for his noncompliance, and none is apparent to the Court. His objections in this regard are meritless.
As to Plaintiff's renewed request under Federal Rule of Civil Procedure 17 for a "stay of response and competence hearing" and an "order" for psychologist "Dr. Holder" to submit a report (Objs. at 3), Rule 17 provides in relevant part that "[t]he 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). "A party proceeding pro se in a civil lawsuit is entitled to a competency determination when substantial evidence of incompetence is presented." Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005); see also id. at 1151-53 (standard met when inmate and his nonparty inmate assistant submitted declarations that mental illness hindered his ability to understand and comply with court orders and prison psychiatrist attested to relevant diagnosis and treatment). When "a party's incompetence in fact caused him to fail to prosecute or meet a filing deadline, the action should not be dismissed" on those grounds. Id. at 1153.
Plaintiff does not proffer what relevant information "Dr. Holder" allegedly possesses, nor does he say that he has tried to get it from him and the doctor would not cooperate. --------
As discussed above and in this Court's August 20, 2018 order rejecting his most recent such request, nothing in the record, including the attachments to his Objections, suggests that Plaintiff meets that standard. Although Plaintiff allegedly developed his mental-health problems in early 2016 (see, e.g., Pl.'s Aug. 7, 2018 Objs. at 2 & Ex. 1), he did not mention them in any of his many court filings until May 2017, in a Rule 17 request for appointment of counsel received shortly after Defendants had moved for partial summary judgment. Since then, despite his repeated declarations about his supposed inability to prosecute his case on his own, he has been able to make numerous filings in this action, including multiple extension requests and objections to this and the previous R. & R., and to compose relevant arguments and compile and attach his own exhibits.
Furthermore, Plaintiff has had Glass helping him since at least December 2017, and Glass has nowhere stated — whether in his sworn "Personal Affidavit of Truth" (see Pl.'s Jan. 16, 2018 Mot. Extension of Time, Ex. 1, Glass Decl.) or anywhere else — that he tried to question Plaintiff about facts relevant to his claims but Plaintiff's mental illness prevented him from helping. The "Affidavit of Truth" merely declares conclusorily that Glass "do[es]n't believe that [Plaintiff] has the mental capa[]city to litigate the above matter," without elaborating on why Glass so believes or adducing any evidence on the issue. (Id. ¶ 3.)
To the contrary, the documents Plaintiff submitted show that he attributed his mental-health symptoms to "losing his [court] case," suggesting that he did understand what was going on in these proceedings. (See Pl.'s Aug. 7, 2018 Objs., Ex. 4 at 1 (Mar. 2018 report of visit with mental-health-care provider).) That does not meet Rule 17's "substantial evidence" standard. See, e.g., Johnson v. Gonzalez, No. 1:09-cv-01264-BAM PC, 2015 WL 1729794, at *3 (Apr. 15, 2015) (incompetency standard not met when plaintiff submitted pro se declaration, declaration from cellmate who was not "qualified to assess [his] mental competence or thinking processes," medical records showing therapeutic dosages of psychotropic medications, and parole records showing he was "slow learner" who had not finished high school); Hoang Minh Tran v. Gore, No. 10cv464-GPC (DHB)., 2013 WL 1625418, at *4 (S.D. Cal. Apr. 15, 2013) (plaintiff not incompetent based on own declaration of mental illness and conclusory declaration from fellow inmate that he "lack[ed] . . . ability to prosecute his case" when fellow inmate was unqualified to opine on plaintiff's mental abilities and medical records did not indicate incompetence and attributed plaintiff's anxiety to worries about his legal proceedings).
With respect to Plaintiff's request for a stay, he has not explained why he needs one, and Rule 17 does not expressly provide for one. This case has been pending for more than seven years, and Plaintiff has had numerous opportunities to submit evidence of his supposed mental incompetence but has been unable to do so; indeed, as discussed in the August 20 order, the medical documents he did submit show at most mild to moderate mental-health difficulties, and his filings in this case amply demonstrate his ability to litigate his claims pro se.
Having reviewed the R. & R. de novo as well as Plaintiff's Objections to it and Defendants' response, the Court accepts the findings and recommendations of the Magistrate Judge.
IT THEREFORE IS ORDERED that Plaintiff's request under Federal Rule of Civil Procedure 17 be DENIED, Defendants' motion to dismiss be GRANTED, and this action be DISMISSED. DATED: January 2, 2019
/s/_________
PHILIP S. GUTIERREZ
U.S. DISTRICT JUDGE