(PC) Terflinger v. Wiley

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA RICHARD TERFLINGER, No. 2:17-cv-0902 AC P 12 Plaintiff, 13 v. ORDER B. WILEY, et al., 15 Defendants.

17 Plaintiff is a state prisoner proceeding through limited appointment counsel with a civil rights action pursuant to 42 U.S.C. § 1983. On January 15, 2020, this matter came before the court for a status conference regarding plaintiff’s competency and the potential appointment of a guardian ad litem for purposes of further settlement proceedings. Lori Rifkin appeared on behalf of plaintiff, and Janet Chen appeared on behalf of defendants. Having considered the documents submitted at ECF Nos. 41 and 46, and the statements of counsel, the court makes the following findings for reasons stated on the record and with the concurrence of all counsel: 24 1. There has been a substantial showing of incompetence that requires a competency 25 hearing. See Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005).

26 2. Plaintiff is unable, due to his dementia and related cognitive deficits, to participate 27 meaningfully in a competency hearing, and the question of competence may be 28 reliably determined on the basis of the record before the court without his appearance.

1 3. The record establishes that Mr. Terflinger lacks the capacity to understand the nature 2 and consequences of the instant proceedings, and is unable to assist counsel in 3 negotiating a settlement or preparing the case. He is therefore incompetent under 4 California law. See Cal. Civ. Proc. Code § 372; In re Jessica G., 93 Cal. App. 4th 5 1180, 1186 (2001).

6 4. Appointment of a guardian at litem for purposes of further settlement proceedings is 7 appropriate under Federal Rule of Civil Procedure 17(c)(2).

8 Accordingly, IT IS HEREBY ORDERED that counsel for plaintiff shall confer with the | potential guardian ad litem and defense counsel in order to schedule a further hearing to address | the proposed appointment.

11 | DATED: January 15, 2020 ~ 12 ththien— Chane ALLISON CLAIRE 13 UNITED STATES MAGISTRATE JUDGE