Etienne v. United States

Opinion

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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 KIM A. ETIENNE, CASE NO. 21-cv-01429 8 Plaintiff, ORDER FOR RULE 17 COMPETENCY 9 HEARING v. 10 UNITED STATES OF AMERICA, 11 Defendant. 12 13

14 The Court raises the issues addressed below sua sponte. 15 BACKGROUND 16 Plaintiff Kim Etienne began this case represented by counsel, but following a hearing 17 before U.S. Magistrate Judge Kate Vaughan, his attorneys withdrew in December 2022. Dkt. 18 Nos. 34–36. Since then, Plaintiff has proceeded pro se. Recently, the parties reached an impasse 19 concerning several discovery issues, and Defendant United States of America moved to compel 20 Plaintiff’s deposition, as well as the depositions of his wife and retained medical expert. Dkt. No. 21 40. Plaintiff opposed the motion, but he filed his brief late.1 He claims his late filing was owed to 22 1 Plaintiff filed his opposition one day before the noting date on Defendant’s motion, but 23 Defendant did not request more time to file a response and filed a timely reply brief. As a result, the Court finds that Plaintiff’s late filing caused Defendant no prejudice. The Court will consider 24 1 “error, mistake, [and] illness but not purposely done.” Dkt. 48 at 4. In his opposition brief, 2 Plaintiff raised concerns about the withdrawal of counsel, among other things. Specifically, in 3 what appears to be a reference to the hearing on the withdrawal of his previous counsel, he states

4 “[t]he Plaintiff was not heard, Emergency Hearing closed video or audio file of the hearing are 5 placed under seal that I wasn’t able to review or provide a copy to me for which review which I 6 feel was prejudicial and has impacted my case which now brings us to this point in time I have 7 zero representation.” Dkt. No. 43 at 2. Plaintiff explains further that he was “not heard [n]or was 8 a written statement entered on his behalf” at the hearing before Judge Vaughan. Id. Because he 9 did not attend the hearing, and because the hearing documents submitted by Plaintiff’s former 10 counsel were filed under seal, it appears that Plaintiff is unfamiliar with the concerns his former 11 counsel raised at the hearing about his competency. 12 ANALYSIS

13 Fed. R. Civ. P. 17(c) requires district courts to take whatever measures they deem 14 necessary to protect an incompetent person during litigation. “Although the court has broad 15 discretion and need not appoint a guardian ad litem if it determines the person is or can be 16 otherwise adequately protected, it is under a legal obligation to consider whether the person is 17 adequately protected.” United States v. 30.64 Acres of Land, More or Less, Situated in Klickitat 18 Cnty., State of Wash. (Acres), 795 F.2d 796, 805 (9th Cir. 1986). The capacity to sue is 19 determined by the law of the plaintiff’s domicile. Fed. R. Civ. P. 17(b)(1). Washington courts 20 presume that a civil litigant is competent, except “when reasonably convinced that a party 21 litigant is not competent, understandingly and intelligently, to comprehend the significance of 22

23 Plaintiff’s untimely opposition in the interest of justice given his pro se status. See Taylor v. Fairfield Resorts, Inc./Wyndham, 207-CR-01602-RCJ-GWF, 2009 WL 5195973, at *4 (D. Nev. 24 Dec. 23, 2009) (considering pro se plaintiff’s late filing). 1 [the] legal proceedings and the effect and relationship of such proceedings in terms of the best 2 interests of such party litigant.” Graham v. Graham, 240 P.2d 564, 565 (Wash. 1952); see Life 3 Ins. Co. of N. Am. v. Hamilton, C20-6046 BHS, 2021 WL 1894029, at *1 (W.D. Wash. May 11,

4 2021) (citing Graham, 240 P.2d 564)). 5 Here, the Court finds evidence in the record raising substantial questions about Plaintiff’s 6 competence and his ability to litigate this case on his own. This is based on the records 7 maintained under seal, Plaintiff’s recent representation that “illness,” at least in part, prevented 8 him from filing a timely response to Defendant’s motion to compel, and the Court’s observation 9 that Plaintiff’s wife, non-party Charlene Etienne, may be attempting to act as Plaintiff’s attorney 10 in this matter.2 For example, Charlene Etienne has signed several pleadings as Plaintiff’s 11 “Assistant,” suggesting that she may have played a role in drafting the documents. Dkt. Nos. 43 12 at 17; 48 at 5. And there are emails in the record in which Charlene Etienne communicates 13 directly with opposing counsel, arguing about various matters at issue. See Dkt. No. 43 at 6, 16. 14 Under these circumstances, the Court failing to inquire further about Plaintiff’s 15 competence “is not an abuse of discretion but a failure to exercise legally required discretion.” 16 Acres, 795 F.2d at 805. “The preferred procedure when a substantial question exists regarding 17 the mental competence of a party proceeding pro se is for the district court to conduct a hearing 18 to determine whether or not the party is competent . . . .” Krain v. Smallwood, 880 F.2d 1119, 19 1121 (9th Cir. 1989). 20 Federal courts in this circuit have found that a broad range of evidence may inform the 21 court’s decision at such a hearing, including the court’s own observations about the plaintiff’s 22 2 Any person who is representing himself or herself pro se may do so personally, but they cannot 23 delegate that duty to another person who is not an attorney, including a spouse. Baker v. Ward, C23-138 BHS, 2023 WL 4446966, at *1 (W.D. Wash. July 11, 2023); Palik v. Guam Behav. 24 Health & Wellness Ctr., No. CV 21-00026, 2022 WL 1138190, at *3 (D. Guam Apr. 18, 2022). 1 manner, behavior, and general mental state through court-led questioning. See AT&T Mobility, 2 LLC v. Yeager, 143 F. Supp. 3d 1042, 1050 (E.D. Cal. 2015). 3 In the meantime, the Court STRIKES the current trial date and other associated case

4 deadlines and will hold Defendant’s motion to compel in abeyance until the Court’s competency 5 inquiry is complete. 6 CONCLUSION 7 Accordingly, the Court ORDERS as follows: 8 The Clerk of the Court will provide Plaintiff with a copy of the document maintained 9 under seal at Dkt. No. 31. 10 The Court will hold a competency hearing within 14 days of the date of this order. 11 The Court STRIKES the trial date and CONTINUES all related dates in this matter 12 pending Plaintiff’s response and Rule 17 proceedings, after which the Court will issue new

13 deadlines. 14 Dated this 21st day of September, 2023. 15 A 16 Jamal N. Whitehead United States District Judge 17

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