21-397 Wang v. Delphin-Rittmon

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of November, two thousand twenty-two.

PRESENT: Jon O. Newman, Guido Calabresi, Steven J. Menashi, Circuit Judges. ____________________________________________

LISHAN WANG,

Plaintiff-Appellant,

v. No. 21-397-cv

MIRIAM DELPHIN-RITTMON, HELEN VARTELAS, CEO, Connecticut Valley Hospital, THOMAS WARD-MCKINLAY, Psychologist, Director of Whiting, FRANK VALDEZ, Unit 2 Director, FRANKEL, DR., (1ST NAME), Physician, (Possible First Name: “Irene”), KATHY BURNESS, APRN, WANDA WILLIAMS, Staff Member, MISTY DELCIAMPO, Nurse,

Defendants-Appellees,

MICHAEL A. NORKA, Psychiatrist, MARK COTTERELL, Principal Psychiatrist, TAIYA OGUNDIPE, Dr., Psychiatrist, LORI L. HAUSER, Psychologist, SUSAN MCKINLAY, Forensic Monitor, SANDRA MALDONADO, Staff Member, WILL FERNANDEZ, Staff Member, SARYN EVANS, Staff Member, NURSE HEATHER MADISON, ODETTE BOGLE, Clinical Social Worker, CAESAR RIVERA, Policeman, IRENE FRNAKEL, Dr., (1st Name?), Physician,

Defendants. ____________________________________________

For Plaintiff-Appellant: JON ROMBERG & KEGAN SHEEHAN (Michelle Kostyack & Jessica Kriegsfeld, on the brief), Seton Hall University Law School, Center for Social Justice, Newark, NJ.

For Defendants-Appellees: MARY K. LENEHAN, Assistant Attorney General (Elizabeth H. Bannon, Assistant Attorney General, on the brief), for William Tong, Attorney General of the State of Connecticut, Hartford, CT.

2 Appeal from a judgment of the United States District Court for the District

of Connecticut (Covello, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of said district court is AFFIRMED.

Plaintiff-Appellant Lishan Wang appeals the judgment of the United States

District Court for the District of Connecticut dismissing his claims against state

employees of the Whiting Forensic Unit of Connecticut Valley Hospital

(“Whiting”). We assume the parties’ familiarity with the factual and procedural

history of the case.

On appeal, Wang argues that the district court erred by not conducting a

competency hearing for him while he was proceeding pro se. We agree. The

Federal Rules of Civil Procedure require a district court to “appoint a guardian ad

litem—or issue another appropriate order—to protect a[n] … incompetent person

who is unrepresented in an action.” Fed. R. Civ. P. 17(c)(2). In Ferrelli v. River Manor

Health Care Center, we said that Rule 17(c) does not impose on a district court “an

obligation to inquire sua sponte into a pro se plaintiff’s mental competence, even

when the judge observes behavior that may suggest mental incapacity.”

(2d Cir. 2003). But we continued:

3 If a court were presented with evidence from an appropriate court of record or a relevant public agency indicating that the party had been adjudicated incompetent, or if the court received verifiable evidence from a mental health professional demonstrating that the party is being or has been treated for mental illness of the type that would render him or her legally incompetent, it likely would be an abuse of the court’s discretion not to consider whether Rule 17(c) applied.

In this case, the district court received such evidence from a mental health

professional just days after Wang filed his first complaint. See Exhibit B (“Dr.

Cotterell and Dr. Hauser’s Original Report About Mr. Wang’s Mental Health”),

Wang v. Delphin-Rittmon, No. 3:16-CV-01207 (D. Conn. July 19, 2016), ECF No. 5.

The report noted that Wang had been adjudicated incompetent by the Connecticut

Superior Court in which Wang was being prosecuted for murder. It also stated

that “the unanimous opinion of [Wang’s] treatment team and the writers [of the

report is] that Mr. Lishan Wang has not yet demonstrated sufficient understanding

of the [criminal] proceedings and does not yet have the ability to assist in his

defense.” Id.at 13. Yet the district court never conducted a competency hearing, as

Ferrelli requires.

It is possible that the district court did not conduct a hearing because it was

waiting to see the results of Wang’s treatment plan—which included forcible

4 psychiatric medication by Whiting employees—before ruling on the merits of his

claims. The district court did not enter any decisions on the merits until after the

Connecticut Superior Court determined that Wang was competent. If that had

been the reason for the district court’s failure to investigate Wang’s competency,

then there would not have been error. But the record does not establish that the

district court was waiting for that determination, and the district court never said

it was.

But even if the district court erred, that error was harmless. See United States

v. Cummings,

(2d Cir. 2017) (holding that errors reviewed for

abuse of discretion are subject to harmless error analysis);

(requiring a court of appeals to disregard errors that “do not affect the substantial

rights of the parties”). On June 5, 2017, approximately one year after Wang first

began this civil action, the Superior Court found that he had been restored to

competence. The record does not make clear that the district court was aware of

the Superior Court’s finding. But had the district court been aware of it, it would

have been entitled to rely on it. Such a finding would have terminated the district

court’s obligation under Ferrelli to investigate Wang’s competence.

5 The district court ruled on the merits of Wang’s claims only after June 5,

2017, when the Superior Court adjudicated him competent. The defendants moved

to dismiss Wang’s claims on June 7, 2017. Wang did not respond to that motion.

The district court granted the motion in part on September 12, 2017. The

defendants did not move for summary judgment until March 2020, and the district

court did not grant the summary judgment motion until November 2020. These

are unique circumstances: the state court determined Wang to be competent while

the federal civil suit was ongoing, and the federal district court did not rule on the

merits of the civil suit until after that determination. Given that series of events,

we conclude that any error in failing to conduct a competency hearing was

harmless.

* * *

We have considered Wang’s remaining arguments, which we conclude are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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