Dawes v. The People of the State of California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM DAWES, Case No. 19-cv-2122-MMA (VET)

12 Plaintiff, ORDER: 13 vs. LIFTING STAY OF PROCEEDINGS 14 HOWARD AUSBURY, et al.

15 Defendants. [Doc. No. 46]

16 GRANTING REQUEST FOR 17 JUDICIAL NOTICE and DENYING REQUEST FOR HEARING TO 18 APPOINT A GUARDIAN AD LITEM 19 [Doc. No. 100] 20 21 RECONSIDERING MOTION TO APPOINT COUNSEL AND 22 REFERRING CASE TO PRO BONO 23 PANEL PURSUANT TO GO 596 24 [Doc. No. 89] 25 26 I. INTRODUCTION 27 Plaintiff William Dawes, a California inmate proceeding pro se, has brought this 28 civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Ausbury, Bravo, 1 Gene, Ugalde, Silva, Shellano, Ayala, Solis, and Zuniga. See Doc. No. 1. After the 2 Court granted Plaintiff in forma paupers status and screened his Complaint, Doc. No. 9, 3 Plaintiff filed an Amended Complaint. Doc. No. 13. The Court screened the Amended 4 Complaint and dismissed all claims against all Defendants except for Plaintiff’s Eighth 5 Amendment claims against Defendants Bravo, Gene, Ugalde, Ausbury, Silva, Shellano, 6 Ayala, Solis, and Zuniga. Doc. No. 15. Plaintiff served the Amended Complaint on 7 Defendants and Defendants answered. Doc. Nos. 24–34. 8 On April 15, 2021, the parties filed a joint motion to stay these proceedings 9 pending the outcome of related criminal proceedings in state court, which the Court 10 granted. See Doc. Nos. 44, 46; see also S.D. Sup. Ct. No. SCS287189. Defendants were 11 directed to file status reports advising the Court as to the continuing justification for the 12 stay. Doc. No. 46. On June 29, 2021, Defendants filed a status report informing the 13 Court that Plaintiff had been found incompetent to stand trial; the Court extended the stay 14 through February 18, 2022. See Doc. Nos. 49–50. Plaintiff continued to litigate his 15 competency in state court and Defendants filed five more status reports regarding those 16 proceedings asking to extend the stay, which the Court granted. See Doc. Nos. 58–61, 17 63–64, 68–69, 82–83. 18 On August 9, 2024, Defendants filed a status report asking the Court to lift the stay 19 because the state intended to dismiss the criminal charges against Dawes due to his 20 continued incompetency. Doc. No. 100. Defendants also asked the Court to hold a 21 hearing to determine whether to appoint a guardian ad litem pursuant to Federal Rule of 22 Civil Procedure 17(c)(2). Id. 23 II. DISCUSSION 24 A. Motion to Lift Stay 25 This case was stayed by the Court because Plaintiff’s ongoing state criminal 26 proceedings could have mooted or narrowed his claims in this case and because Plaintiff 27 could not be deposed or have proper access to legal materials while he was being held in 28 the San Diego County Jail pending trial. See Doc. Nos. 44, 46. According to counsel for 1 Defendants, Plaintiff’s criminal case has now been dismissed, and therefore the reasons 2 for staying these proceedings no longer exist. See Doc. No. 100-2. Accordingly, the 3 Court GRANTS Defendants’ request to lift the stay in this case. 4 B. Request for Judicial Notice and To Set a Guardian Ad Litem Hearing [Doc. No. 5 100] 6 Defendants ask this Court to take judicial notice of court minutes and orders from 7 Plaintiff’s state court criminal case and the California Court of Appeal’s order in 8 Plaintiff’s appeal pursuant to Federal Rule of Evidence 201. Doc. No. 100-1. A court 9 “‘may take notice of proceedings in other courts, both within and without the federal 10 judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v. 11 Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 12 F.3d 801, 803 n.2 (9th Cir. 2002)). Accordingly, the Court GRANTS the request for 13 judicial notice. 14 The documents from Plaintiff’s state court criminal case show that because his 15 incompetency has lasted more than two years, criminal proceedings were indefinitely 16 suspended on May 3, 2024. According to a declaration by Deputy Attorney General 17 Chris Findley, Plaintiff’s San Diego Superior Court case no. SCS287189 was dismissed 18 on August 10, 2024. Doc. No. 100-2. The state court documents also show Plaintiff was 19 most recently found to be incompetent on January 16, 2024. Doc. No. 100-1 at 4. Thus, 20 because there is a substantial question regarding Plaintiff’s mental competence, in order 21 for this case to proceed the Court must address its obligations under Federal Rule of Civil 22 Procedure 17(c)(2).1 See Harris v. Magnum, 863 F.3d 1133, 1138 (9th Cir. 2017); Allen 23 v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005). 24 25 26 27 1 Unless otherwise noted, all “Rule” references are to the Federal Rules of Civil Procedure. 28 1 Rule 17(c)(2) states that “[t]he court must appoint a guardian ad litem ⸺or issue 2 another appropriate order⸺to protect a minor or incompetent person who is 3 unrepresented in an action.” Fed. R. Civ. P. 17(c)(2). However, the Ninth Circuit has 4 noted that “a non-lawyer ‘has no authority to appear as an attorney for others than 5 himself.’” Johns v. Cnty. of San Diego, 114 F.3d 874, 867, 876-77 (9th Cir. 1997) (citing 6 Osei–Afriyie v. Medical College, 937 F.2d 876, 882-83 (3d Cir. 1991)). Courts in the 7 Ninth Circuit have interpreted this to mean a guardian ad litem must be represented by 8 counsel in order to pursue a lawsuit on behalf of an incompetent individual. See 9 Bradford v. Safy, No. 21-cv-0637-TLN (EFB P), 2022 WL 605667, at *2 (E.D. Cal. Mar. 10 1, 2022) (stating that “[w]ithout counsel . . . a plaintiff may not proceed through a 11 guardian ad litem”) (citing Johns, 114 F.3d at 877)); Calabrese v. California, No. 19-cv- 12 2492-CBM (SPx), 2022 WL 2114569, at *3 (C.D. Cal. Apr. 22, 2022) (stating that under 13 Johns, a guardian ad litem cannot proceed pro se on behalf of a Plaintiff); Reliastar Life 14 Insurance Co. v. M.S., No. 19-cv-9628-MCS (AGR), 2020 WL 13866581, at *2 (stating 15 that “[a] guardian ad litem must be represented by counsel”) (citing Johns, 114 F.3d at 16 877)); Gonzalez v. Arizona Dept. of Health Services, No. 08-cv-2391-PHX (DGC), 2009 17 WL 383535, at *1 (D. Ariz Feb. 13, 2009) (“‘An incompetent person who does not have 18 a duly appointed representative may sue by a next friend or by a guardian ad litem,’ so 19 long as that representative is assisted by counsel.”) (quoting Johns, 114 F.3d at 877)). 20 “The purpose of Rule 17(c) is to protect an incompetent person’s interest in 21 prosecuting or defending a lawsuit.” Davis v. Walker, 745 F.3d 1303, 1310 (9th Cir. 22 2014). Thus, while a court may appoint a guardian ad litem, it is not required to do so. 23 “If another order would sufficiently protect the incompetent person’s interests in the 24 litigation in lieu of a guardian, the court may enter such an order.” Id. “The appointment 25 of counsel may serve as [an] alternative to the appointment of a guardian ad litem.” 26 AT&T Mobility, LLC v. Yeager, 143 F. Supp. 3d 1042, 1053 (E.D. Cal. Nov. 10, 2015) 27 (citing Davis, 745 F.3d at 1311); see also Reliastar Life Insurance Co., 2020 WL 28 13866581, at *2; Armstrong v. Brotherton, No. 13-cv-1264-PHX-DCG (BSB), 2014 WL 1 46096, at *3 (D. Ariz. Feb. 5, 2014) (appointing counsel for an incompetent plaintiff in 2 lieu of a guardian ad litem). 3 Plaintiff has expressed a desire to be represented by counsel in this case on two 4 occasions, which the Court denied. See Doc. Nos. 65–66, 89, 94. The circumstances of 5 this case, however, have changed because the case will no longer be stayed, Plaintiff has 6 been found to be incompetent to stand trial for two years, and his state court criminal case 7 has been dismissed. See Doc. No. 100-1 at 4–7, 13, 100-2. Further, even if the Court 8 were to hold a hearing and determine that a guardian ad litem should be appointed, there 9 is no obvious individual who could fulfill that role and any such person would have to 10 secure counsel of their own. Johns, 114 F.3d at 876–77. Given these facts, the Court 11 RECONSIDERS Plaintiff’s March 4, 2024 motion to appoint counsel [Doc. No. 89]. 12 This Court’s General Order 596, which established the district’s Pro Bono Panel, states 13 that the Court may appoint counsel “if it is apparent from the pleadings or other materials 14 before the Court that the pro se civil plaintiff has mental or other disabilities substantially 15 interfering with his or her ability to present the factual and legal claims.” United States 16 District Court, Southern District of California GO 596, adopted Aug. 3, 2011. The Court 17 concludes that referring this case to the Pro Bono Panel to locate volunteer counsel is 18 therefore appropriate, would adequately protect Plaintiff’s interests, and would discharge 19 the Court’s duty under Rule 17(c)(2). Plaintiff is advised, however, that while the Court 20 has elected to exercise its discretion to refer the case to the Pro Bono Panel, and will do 21 its best to locate a volunteer willing to serve, it cannot make a coercive appointment 22 under 28 U.S.C. § 1915(e)(1) and therefore Plaintiff is cautioned pro bono counsel is not 23 guaranteed. 24 For the foregoing reasons, the Court DENIES the request for a hearing to appoint a 25 guardian ad litem. 26 III. CONCLUSION AND ORDERS 27 The Court GRANTS Defendants’ motion to lift the stay and GRANTS 28 Defendants’ request for judicial notice [Doc. No. 100]. 1 Further, in light of the Court’s obligations under Rule 17(c)(2), the changed 2 || circumstances of this case, the recent finding by the state court that Plaintiff remains 3 ||incompetent, and Plaintiffs previous requests for counsel, the Court RECONSIDERS its 4 recent denial of Plaintiff's motion for appointment of counsel [Doc. Nos. 89, 94] , 5 ||and REFERS this case to the Pro Bono Panel for the United States District Court, 6 || Southern District of California. Accordingly, the Court DENIES the request for a 7 ||hearing to appoint a guardian ad litem. 8 IT IS SO ORDERED. 9 || Dated: August 14, 2024 10 YU - (Ligh 11 HON. MICHAEL M. ELLO United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28