(PC) Fields v. Sanchez

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA DEVONTE FIELDS, Case No.: 1:22-cv-01122-KES-CDB 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FILED OCTOBER 31, 2024 13 v. (Doc. 45) J. SANCHEZ, et al., 15 Defendants.

17 Plaintiff Devonte Fields is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

19 I. RELEVANT BACKGROUND 20 This matter was originally scheduled for a settlement conference before Magistrate Judge Sheila K. Oberto on November 5, 2024. (Doc. 35.) On October 29, 2024, Judge Oberto conducted a telephonic pre-settlement conference wherein it was determined a settlement conference would be premature. (Docs. 43, 44.) This Court subsequently issued an Amended Order Continuing and Resetting Settlement Conference and Settlement Conference Procedures on October 31, 2024.

25 (Doc. 44.) The settlement conference before Judge Oberto was continued to January 30, 2025, and the relevant modified deadlines provided. (Id. at 1-3.) Additionally, the order advised Plaintiff that he could submit a motion for the appointment of counsel and/or a motion for a 1 That same date, Plaintiff filed a document titled “Notice Motion Plaintiff is Totally lost Doesn’t have any Help He’s Disabled with Mental problems and learning Plaintiff shows proof of the claim Please Help.” (Doc. 45.)

4 On November 15, 2024, Defendants filed an opposition to Plaintiff’s motion. (Doc. 46.)

5 The Court construes Plaintiff’s filing to be a motion for the appointment of counsel and a motion for a competency hearing.

7 II. DISCUSSION 8 The Parties’ Briefing 9 Plaintiff’s motion states: “I write with understanding of The Notice of Settlement as required by Local Rule 160. [¶] However, I do not understand the process[.] I don’t know how to respond to it. I have proof to why I can not. Please help me. I’m begging you.” (Doc. 45.)

12 Attached to the motion are the following documents: (1) a letter from Alta California Regional Center to Plaintiff dated September 1, 2024; (2) Page 3 of an undated document from the Alta Regional Medical Center, identified as an “Individual Program Plan” for “Consumer: Devonte Shawn Dupree Fields;” (3) a CDC 128C-2 form dated August 14, 2017; (4) a handwritten page bearing the heading “IV. Relief” and signed August 28, 2022, by Plaintiff; (5) Page 1 of a 3-page document bearing the heading “IN-HOME Annual Review of IPP;” (6) the first page of a Psychological Evaluation and Testing Report dated May 26, 2004, prepared by Psychologist Jeffrey E. Miller; (7) a document titled “Mental Health Forms” from the California Men’s Colony dated July 17, 2019; (8) a document titled “Mental Health Documentation” from Salinas Valley State Prison printed September 2, 2021; (9) Page 2 of an undated document titled “Social Assessment.”

23 Defendants oppose Plaintiff’s motion, arguing he has failed to show exceptional circumstances warranting the appointment of counsel. Defendants contend the documents submitted by Plaintiff in support of his motion “are neither authenticated nor easily capable of authentication.” Moreover, Defendants argue the documents fail to identify “any diminished cognitive capacity” for Plaintiff resulting from a mental health diagnosis.

1 The Applicable Legal Standards 2 Plaintiffs do not have a constitutional right to appointed counsel in section 1983 actions.

3 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 4 952, 954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 5 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

8 Given that the Court has no reasonable method of securing and compensating counsel, the Court will seek volunteer counsel only in extraordinary cases. In determining whether “exceptional circumstances exist, a district court must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & citations omitted).

14 “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). An incapacitating mental disability may be grounds for appointment of counsel in some cases, but a plaintiff making that argument must present substantial evidence of incompetence. See McElroy v. Cox, No. 08-1221 JM (AJB), 2009 WL 4895360 at *2 (E.D. Cal. Dec. 11, 2009).

20 Analysis 21 The Appointment of Counsel 22 Here, there exist no exceptional circumstances warranting the appointment of counsel.

23 First, it is premature to assess the likelihood of Plaintiff’s success on the merits of his claims.

24 Rand, 113 F.3d at 1525. Defendants appeared in this action on July 2, 2024, and the Court referred the matter for an early settlement conference. The settlement conference is presently set for January 30, 2025. Discovery has not yet commenced, and a scheduling order concerning discovery will not issue until after a settlement conference is conducted and settlement efforts screening the Court is tasked with determining whether a plaintiff has sufficiently and plausibly alleged a cause of action or claim entitling the plaintiff to relief. The merits of the allegations are not tested at that stage because the Court is required to consider the factual allegations to be true for purposes of screening.

5 Next, considering Plaintiff’s ability to articulate his claims pro se in light of the complexity of the legal issues involved, the Court finds Plaintiff able to articulate his claims in light of their complexity. Rand, 113 F.3d at 1525. Plaintiff plausibly alleged excessive force claims against Defendants Burnes, Flores, and Sanchez. Excessive force claims are not complex.

9 See, e.g., Davis v. Portillo, No. 1:22-cv-00457-KES-CDB (PC), 2024 WL 1313043, at *3 (E.D.

10 Cal. Mar. 27, 2024); Andre-Gollihar v. County of San Joaquin, No. 2:09-cv-03313 MCE KJN PS, 2010 WL 2925358, at *2 (E.D. Cal. July 26, 2010) (“plaintiff's claims of excessive force and wrongful death are not complex”); Williams v. Whitehurst, No. 4:08CV21-SPM/AK, 2008 WL 13 1766570, at *1 (N.D. Fla. Apr. 11, 2008) (“Although Plaintiff's claims are serious, they are not complex nor will he be required to do legal research since the court is familiar with the law on claims of excessive force and failure to protect”). Notably too, an exhibit to Plaintiff’s complaint includes a copy of a grievance dated December 9, 2019, apparently prepared by Plaintiff. The grievance also establishes Plaintiff is able to articulate his claims. (See Doc. 1 at 17-19.)

18 To the extent Plaintiff relies upon his asserted mental or cognitive disability to support his request, Plaintiff is advised such a condition does not typically warrant the appointment of counsel. See Howard v. Rodriguez, No. 1:24-cv-00285-JLT-SAB (PC), 2024 WL 13970464, at *2 (E.D. Cal. Aug. 28, 2024) (“although Plaintiff submits several mental health records, the mere fact that Plaintiff receives mental health treatment does not make his case extraordinary. Indeed, the Court is regularly faced with cases filed by prisoners proceeding pro se while receiving mental health treatment”); Jones v. Kuppinger, No. 2:13-cv-0451 WBS AC P, 2015 WL 5522290, at *3-*4 (E.D. Cal. Sept. 17, 2015) (“[c]ircumstances common to most prisoners, such as a deficient general education, lack of knowledge of the law, mental illness and disability, do not in themselves establish exceptional circumstances warranting appointment of voluntary civil 13, 2018) (impairment must be “an incapacitating mental disability” and be supported by “substantial evidence of incompetence”).

3 A Competency Hearing 4 In Allen, the Ninth Circuit found substantial evidence of incompetency where the petitioner submitted his own sworn declaration and another inmate’s declaration explaining petitioner’s mental illness and inability to understand the court's orders, as well as a letter from the petitioner’s psychiatrist detailing his diagnosed schizophrenia and medications. Allen, 408 8 F.3d 1150 at 1153. In McElroy, the plaintiff, a pro se prisoner in a section 1983 case, presented documents, similar to those provided in Allen to support his mental disability; however, the court found plaintiff successfully survived screening of his complaint, successfully opposed Defendants' motion to dismiss, that his motions for appointment of counsel were drafted with clarity, the medical records showed that he functions well when properly medicated, and that “there is no nexus between his mental disorder and his ability to articulate his claims.” McElroy, 2009 WL 4895360 at *3.

15 Here, following its review of the documents submitted by Plaintiff, the undersigned concludes a competency hearing is unwarranted at this stage of the proceeding. Plaintiff has not provided the Court with a letter from his treating psychiatrist detailing any diagnosis, nor has he submitted any sworn declaration. The documentation provided by Plaintiff, setting aside any issue concerning authentication, reveals only that Plaintiff no longer receives services from Alta California Regional Center, and that Plaintiff previously qualified for services at some unknown time in the past from that agency, based on diagnoses of mild mental retardation, bipolar disorder, oppositional defiant disorder, and antisocial personality traits. Further documentation from Alta California Regional Center concerning a review of “progress on IPP” is dated from 2010, and provides similar information, as well as information concerning Plaintiff’s juvenile and adult criminal history. It also indicates that at that time Plaintiff received adaptive living skills instruction. The CDC 128C-2 form dated in April 2017 indicates Plaintiff received additional time for orientation in new situations, required the use of simple language to ensure assistance in understanding official paperwork and extra training and supervision when given new jobs to perform. It further indicates a possible developmental disability prior to the age of 18.

3 Further, the single page provided from a Psychological Evaluation and Testing Report prepared by Psychologist Jeffrey E. Miller is dated more than 20 years ago and does not include a diagnosis of any mental incapacity or disability. Rather, it recites the referral from his intake counselor at Alta California Regional Center, the records Dr. Miller reviewed, and the dates and duration of Dr. Miller’s interviews with Plaintiff and his parents. Next, while a document submitted from the California Men’s Colony, dated in July 2019, references diagnoses of borderline personality disorder, Klinefelter syndrome, and major depressive disorder had been “confirmed,” it appears Plaintiff was receiving treatment for those conditions. Further, the document submitted from Salinas Valley State Prison titled “Mental Health Documentation” appears to concern a rules violation report or disciplinary report. It does reference depression, mood and impulse control difficulties, and usual or irrational beliefs, but also indicates the preparer’s belief that Plaintiff’s mental illness did not strongly influence his behavior, and that it his “mental illness may have contributed to his behavior.” Finally, Page 2 of an undated and unidentified “Social Assessment” merely records Plaintiff’s interactions with the interviewer and his mother who was present, as well as behaviors attributed to Plaintiff’s siblings, and appears to have been prepared more than a decade ago.

19 In sum, the documentation provided by Plaintiff does not amount to substantial evidence of incompetence. Many of the documents are more than 10 years old and reference diagnoses made by others. See, e.g., Beckett v. Scalia, No. 1:20-cv-01468-JLT-CDB (PC), 2024 WL 22 134577, at *2 (E.D. Cal. Mar. 29, 2024) (“the Court will not order a competency determination on Plaintiff’s statements alone. Plaintiff must present ‘substantial evidence of incompetence’ but has failed to do so. If Plaintiff wishes the Court to make such a determination, he should submit evidence for the Court’s consideration. Something more than Plaintiff’s statements alone—for example, statements from treating physicians, medical records regarding diagnoses and medications, and/or sworn declarations of knowledgeable witnesses”). Plaintiff will be provided || competency hearing. Should he elect to do so, Plaintiff should provide documentation not merely | referencing past mental health diagnoses or conditions, but a current statement from a treating | psychiatrist or psychologist concerning his present mental health diagnoses, accompanied by | sworn declarations. Because this matter is set for a settlement conference in late January 2025, | Plaintiff will be directed to file any such motion within 30 days to allow for its consideration prior | to the settlement conference.

7 I. CONCLUSION AND ORDER 8 Accordingly, Plaintiff's motion (Doc. 45) filed October 31, 2024, is DENIED. Plaintiff | may file a motion for the appointment of counsel and/or motion for competency hearing within | 30 days of the date of service of this order.

Il | IT IS SO ORDERED.

2 Dated: _ December 9, 2024 | Ww Vv RR 13 UNITED STATES MAGISTRATE JUDGE