1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 PATRIK G. GOODWIN, 11 Case No. 24-cv-06645 BLF (PR) Plaintiff, 12 ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 v.

14 A. GOMEZ, et al., 15 (Docket No. 20) Defendants. 16

17

18 Plaintiff, a state prisoner, filed the instant civil rights action pursuant to

1983 against prison staff at the Salinas Valley State Prison where he is currently 20 incarcerated. Dkt. No. 1. The Court found the complaint stated cognizable claims for 21 excessive force and failure to protect and ordered service on Defendants on April 1, 2025. 22 Dkt. No. 13. 23 Plaintiff moves for appointment of counsel based on “mental issues from having 24 developed [A]lzheimer” and a low reading level. Dkt. No. 20 at 1. He attaches a copy of a 25 medical report from the date of the underlying incident (11/27/23), notes from an 26 optometry examination (12/15/23), and an “ADA/Effective Communication Patient 27 Summary” (10/09/23).

. 1 DISCUSSION 2 A. Appointment of Counsel under

3 There is no constitutional right to counsel in a civil case unless an indigent litigant 4 may lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social 5 Services,

(1981); Rand v. Rowland,

(9th Cir. 1997) 6 (no constitutional right to counsel in § 1983 action), withdrawn in part on other grounds 7 on reh’g en banc,

(9th Cir. 1998) (en banc). The decision to request counsel 8 to represent an indigent litigant under § 1915 is within “the sound discretion of the trial 9 court and is granted only in exceptional circumstances.” Franklin v. Murphy,

(9th Cir. 1984). Here, Plaintiff’s asserted grounds do not establish exceptional 11 circumstances warranting appointment of counsel at this time, and his supporting papers 12 do not establish that he has been diagnosed with Alzheimer and that it has progressed to 13 stage where he is unable to prosecute this action. Accordingly, Plaintiff’s request for 14 appointment of counsel is DENIED without prejudice for lack of exceptional 15 circumstances. See Agyeman v. Corrections Corp. of America,

, 1103 (9th 16 Cir. 2004); Rand,

; Terrell v. Brewer,

(9th Cir. 17 1991); Wilborn v. Escalderon,

(9th Cir. 1986). 18 B. 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 A minor or an incompetent person who does not have a duly appointed 23 representative may sue by a next friend or a guardian ad litem. The court must appoint a guardian ad litem – or issue another appropriate order – to 24 protect a minor or incompetent person who is unrepresented in an action. 25 Fed. R. Civ. P. 17(c)(2). The Ninth Circuit has held that when “a substantial question” 26 exists regarding the mental incompetence of a pro se litigant, the district court should 1 appropriate. Allen v. Calderon,

(9th Cir. 2005); Krain v. Smallwood, 2

, 1121 (9th Cir. 1989). Other circuits have held that a district court’s duty of 3 inquiry under Rule 17(c) is triggered by “verifiable evidence” of incompetence. See, e.g., 4 Powell v. Symons,

(3rd Cir. 2012); Ferrelli v. River Manor Health Care 5 Center,

(2d Cir. 2003). 6 The Ninth Circuit found a “substantial question” regarding competence where a pro 7 se prisoner litigant submitted a letter from the prison psychiatrist stating that the litigant 8 was under his care, had been diagnosed with schizophrenia, and was taking psychotropic 9 medications, see Allen,

, but it found no substantial question where a pro 10 se litigant merely asserted that the district court should have conducted a competency 11 hearing, see Day v. Sonoma Cnty.,

, at *2 (9th Cir. Oct. 30, 1997). The 12 Third Circuit found “verifiable evidence” of incompetence where one co-plaintiff was 13 adjudicated incompetence in a simultaneous criminal proceeding and the other co-plaintiff 14 submitted a letter from a mental health professional. See Powell,

. The 15 Second Circuit has indicated that “verifiable evidence” could take the form of records from 16 a court or public agency or evidence from a mental health professional, but that bizarre 17 behavior, standing alone, is not sufficient to trigger a district court’s duty of inquiry under 18 Rule 17(c). See Ferrelli,

. 19 Plaintiff has failed to submit any evidence of incompetence. His supporting papers 20 indicate that he was examined for an incident on November 27, 2023, and that he had an 21 optometry examination on December 15, 2023. Dkt. No. 20 at 2, 4. Furthermore, the 22 “ADA/Effective Communication Patient Summary” from October 9, 2023, does show that 23 his reading level is “02.0” but otherwise contains no information regarding mental issues. 24 Id. at 5. These documents regarding Plaintiff’s condition from nearly two years ago do not 25 establish that he is currently unable to litigate this matter in pro se. Rather, Plaintiff has 26 shown an ability to articulate his claims in an organized complaint. Dkt. No. 1. Lastly, 1 || of his incompetence to trigger this Court’s duty of inquiry. See Ferrelli,

- 2 || 02. Accordingly, the Court finds that in the absence of verifiable evidence of 3 || incompetence, there is no substantial question regarding Plaintiff's competence and 4 || therefore no duty of inquiry. See Allen,

; Ferrelli,

. 5 || Plaintiff does not warrant appointment of a guardian ad litem under Rule 17(c). 6 7 CONCLUSION 8 For the reasons discussed above, Plaintiff's request for appointment of counsel is 9 DENIED. Dkt. No. 20. 10 This order terminates Docket No. 20. 11 IT IS SO ORDERED. = 12 || Dated: September 19, 2025 Alwn achat 5 ETH LABSON FREEMAN 13 United States District Judge

© 15 16

Z 18 19 20 21 22 23 24 25 26 27