On July 30, 2003, the Tempe Police Department received a 911 emergency call from an employee of Eckerd's Drug Store, located at the corner of McClintock and Broadway Road in Tempe, Arizona. (Doc. 56 at 1-2) The 911 caller reported that Plaintiff Gregory K. Adamson ("Plaintiff ") was allegedly holding a woman at gunpoint in the Eckerd's parking lot. When the police officers arrived on scene, Plaintiff failed to follow their commands to surrender. Plaintiff eventually left the scene in his vehicle and several police officers followed him. (Id. at 2) The police officers surrounded Plaintiff at the Champions' restaurant parking lot in Tempe and again requested that he surrender. (Id.; Doc. 1 4 at 4) Plaintiff failed to surrender and Officer Mike Hayes used less-than-lethal force to 2 subdue him. Plaintiff claims that Defendant Officer Hayes shot the "unarmed Plaintiff in the 3 back 4 times with [rubber bullets] as Plaintiff was surrendering peacefully." (Id.) Plaintiff, 4 who claims to be a minister, asserts that he was attempting to offer assistance ("first aid 5 prayer"*fn1 ) to the woman in the Eckerd's parking lot, that he did not have a weapon on him 6 at the time of the incident, and that the Defendant officers had no cause to aim their weapons 7 at him or to use any force on him. (Id. at 7) 8 After being arrested and refusing medical treatment, doc. 56 at 14, Plaintiff 9 was booked into one of the Maricopa County jails. While in jail, Plaintiff was allegedly denied timely access to his public defender, prevented from using the law library, denied medical care and wrongly placed in solitary confinement. (Doc. 56 at 2)
The August 29, 2005 pro se Amended Complaint seems to allege three general claims: (1) use of excessive force and arrest without probable cause in violation of the Fourth Amendment, and other violations under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, all purportedly actionable under 42 U.S.C. § 1983; (2) Defendants' failure to train, supervise, and monitor their employees; and (3) violation of Plaintiff's right to Due Process by Defendant Arpaio. (Doc. 4 at 4)
This case languished in the District Court for an extended period of time while Plaintiff either represented himself or was represented by different lawyers until October 19, 2010 when the case was reassigned to the Honorable John W. Sedwick, United States District Judge. (Doc. 128) On November 1, 2010, Judge Sedwick denied without prejudice the then-pending motions for summary judgment, docs. 98, 104, filed by Defendants on June 23, 2009 and August 12, 2009, because "the existing motion papers have grown stale[,]" and directed the Clerk of Court to appoint a magistrate judge to the case. (Doc. 129 at 2)
By random lot assignment, this § 1983 action was referred to the undersigned Magistrate Judge to whom Judge Sedwick "delegate[d] responsibility for conducting [a] competency hearing and determining [Plaintiff's] competency pursuant to 28 U.S.C. § 2 636(b)(1)(A). If [Plaintiff] is found incompetent, the magistrate judge is further directed to 3 appoint a guardian ad litem pursuant to Rule 17(c)." (Id.) Judge Sedwick further directed 4 that "[i]f a guardian ad litem is appointed, the guardian should have an opportunity to oppose 5 the defendants' [anticipated] motions for summary judgment." (Id.) After Plaintiff's 6 competency is determined and a guardian ad litem appointed, if appropriate, a new Rule 16 7 scheduling order regarding a dispositive motions filing deadline will be entered in order to 8 manage this case without further delay. 9 B. November 30, 2010 scheduling hearing On November 4, 2010, the undersigned set a Rule 16 scheduling conference in Courtroom 302, Sandra Day O'Connor U.S. Courthouse and ordered counsel for Defendants and Plaintiff to be physically present "to discuss, among others, the date to conduct a competency hearing to determine Plaintiff's competency, whether the parties desire to conduct any discovery on the issue including the scheduling of an Independent Mental Examination pursuant Rule 35, Fed.R.Civ.P., and a memoranda deadline prior to the hearing for the parties to set forth the relevant law on the standard or measure to determine a plaintiff's competency in a District of Arizona civil case." (Doc. 130 at 2)
At the November 30, 2010 scheduling conference, pro se Plaintiff, a resident of Chino Valley, Arizona; his companion and driver, Louise Nowell; and defense attorneys, Maria Brandon and Clarence E. Matherson, Jr., were present. Confirming on the record that they possessed copies of Plaintiff's medical records identified in Judge Sedwick's November 1, 2010 order, counsel for Defendants stipulated that Plaintiff was presently incompetent and unable to represent himself and declined the Court's invitation to conduct an Independent Mental Examination pursuant Rule 35, Fed.R.Civ.P., even though the Court would have authorized a defense IME despite discovery having closed on April 15, 2008. (Doc. 65 at 2) At the hearing, Ms. Nowell proffered her lay opinion, based on her personal knowledge of Plaintiff, that Plaintiff is not presently mentally competent and is unable to safely drive a motor vehicle.
At the conference, Plaintiff provided counsel and the Court with a copy of a 2 Yavapai County Superior Court minute entry, dated September 22, 2010, issued in a pending 3 civil case entitled Adamson v. Curtis, Case No. P1300CV20050103. In this minute entry, 4 Superior Court Judge Ralph M. Hess indicates: 5 Plaintiff Gregory K. Adamson ("Adamson") has filed several motions to stay these proceedings seeking the appointment of an attorney and guardian ad 6 litem. The Court has denied Adamson's requests for appointment of an attorney for the reason that he does not have the right to court appointed 7 counsel in this civil matter. The Court has also determined that Adamson is incompetent and in need of a guardian ad litem; however, Adamson has 8 been unable to nominate anyone to act as his guardian ad litem. . . . 9 Exhibit 1, page 1, identified at the November 30, 2010 scheduling conference (emphasis added).
In his November 1, 2010 order, Judge Sedwick noted that Plaintiff has filed a psychologist's report, dated August 2, 2010, identifying Plaintiff's "various mental issues." (Doc. 129 at 1) After conducting "a Neuropsychological Mental Status Exam," Stephen C. Gill, Ph.D., a Sedona, Arizona licensed psychologist, citing Arizona Revised Statute § 13-4501, concluded that Plaintiff does not "show the requisite capacity to play an appropriate role as a plaintiff in a legal proceeding" or "to participate with an attorney in providing pertinent facts necessary in a court proceeding." (Doc. 123-1 at 1) Upon a July 28, 2010 evaluation, Dr. Gill found Plaintiff "easily confused, scattered, and lacking sustained focus. He was highly forgetful in the short term. It was difficult for him to find the right word, phrase or sentence to provide an explanation in response to a number of questions or instructions. For example, on a screening measure of cognitive assessment, [Plaintiff] scored poorly on word recall and verbal fluency. Category cues and multiple choice cues did not improve the quality of his verbal recall." (Id.) Dr. Gill diagnosed Plaintiff "with Post Traumatic Stress Disorder; Obsessive Compulsive Disorder; and Cognitive Disorder, (by patient report) NOS." (Id.)
At the November 30, 2010 scheduling conference, the parties agreed that it was unnecessary to schedule and conduct a contested competency hearing because it is undisputed that at this time, Plaintiff lacks the mental capacity to proceed pro se in this § 1983 action without representation by counsel. The Court agrees. 2 II. Federal Rule of Civil Procedure 17(c) and Guardians ad litem 3 The Ninth Circuit has established that "[i]f an infant or incompetent person is 4 unrepresented, the court should not enter a judgment which operates as a judgment on the 5 merits without complying with Rule 17(c)." Krain v. Smallwood, 880 F.2d 1119, 1121 (9th 6 Cir. 1989); Allen v. Calderon, 408 F.3d 1150, 1153-54 (9th Cir. 2005) ("Because there was 7 sufficient evidence of Allen's incompetence, the district court abused its discretion in 8 dismissing the petition for failure to prosecute without first holding a competency hearing 9 or otherwise considering his claim."). "The absence of a guardian ad litem in this case prejudices the ability of the court to request counsel to represent [plaintiff], puts the due process rights of [plaintiff] in jeopardy in any trial that proceeds absent such representation, and effectively precludes the possibility of a binding contract of settlement because of the incompetency of one of the parties." United States v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986).
"The preferred procedure when a substantial question exists regarding the mental competence of a party proceeding pro se is for the district court to conduct a hearing to determine whether or not the party is competent, so that a representative may be appointed if needed." Krain, 880 F.2d at 1121. If the incompetent litigant refuses to cooperate, however, the district "court may dismiss the case without prejudice." Id. (citing Bodnar v. Bodnar, 441 F.2d 1103, 1104 (5th Cir. 1971) (affirming a dismissal without prejudice where the plaintiff refused to submit to a mental examination to determine whether she was competent).
Federal Rule of Civil Procedure 17 governs both the determination of a party's capacity to sue and be sued and his status as the real party in interest. The "real party in interest" principle requires that an action "be brought in the name of the party who possesses the substantive right being asserted under the applicable law." 6A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1541 at 321 (2d ed. 1990) ("Federal Practice & Procedure" ). Capacity, by contrast, refers to "a party's personal right to litigate in a federal court." Id. § 1542, at 327. 2 Federal Rule of Civil Procedure 17(c)(2), Fed.R.Civ.P., provides in relevant 3 part: 4 (c) Minor or Incompetent Person. 5 * * * * 6 (2) Without a Representative. [A]n incompetent person who does not have a duly appointed representative may sue by a next friend or by a 7 guardian ad litem. The court must appoint a guardian ad litem--or issue another appropriate order--to protect . . . incompetent person 8 who is unrepresented in an action. 9 Rule 17(c), Fed.R.Civ.P. (emphasis added). "Rule 17(c) does not make the appointment of a guardian ad litem mandatory. If the court feels that the [person's] interests are otherwise adequately represented and protected, a guardian ad litem need not be appointed ." McLean v. GMAC Mortg. Corp., 2010 WL 3784527, * 2 (11th Cir. 2010) (citation omitted).
It is undisputed that Plaintiff lacks a "duly appointed representative" and is not otherwise represented within the meaning of Rule 17(c). This Rule, however, provides "no guidance regarding the circumstances that warrant a competency inquiry, or whether a pro se plaintiff should receive special consideration under the rule." Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 201 (2d Cir. 2003), cert. denied, 540 U.S. 1195 (2004). In exercising its discretion in this area, a district court should be "mindful of the need to protect the rights of the mentally incompetent[,]" id., and is "under a legal obligation to consider ...