Welch v. Liggett

Opinion

1 2 3 6 KENTRELL D. WELCH, 7 Case No.: 2:19-cv-01243-APG-NJK Plaintiff, v. 9 [Docket Nos. 63, 64] LIGGETT, et al., 10 Defendants. 11 12 Pending before the Court is Plaintiff Kentrell D. Welch’s motion to excuse him from 13 participating in his upcoming competency hearing. Docket No. 63. Plaintiff submits that requiring 14 him to travel within Ely State Prison for a videoconference hearing poses a high risk of exposure 15 to the COVID virus. Id. at 2. Also pending before the Court is Plaintiff’s motion to admit relevant 16 exhibits, Docket No. 64, which the Court construes as a request for the Court to consider the 17 exhibits attached to Plaintiff’s motion to excuse him from participating in his hearing. Estelle v. 18 Gamble, 429 U.S. 97, 106 (1976). The Court has considered Plaintiff’s motion to excuse him from 19 participating in his upcoming competency hearing and the exhibits attached therein.1 The motion 20 is properly resolved without a hearing. See Local Rule 78-1. 21 The Court “must appoint a guardian ad litem—or issue another appropriate order—to 22 protect a[n] … incompetent person who is unrepresented in an action.” Fed. R. Civ. P. 17(c)(2). 23 Further, the Court “is under a ‘legal obligation’ to consider whether an incompetent person is 24 adequately protected.” Jurgens v. Dubendorf, 2015 WL 6163464, at *3 (E.D. Cal. Oct. 19, 2015) 25 (citing United States v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986)). When a 26 substantial question exists regarding the mental competency of a party proceeding pro se, the 27

28 1 Plaintiff’s motion to admit relevant exhibits is DENIED as unnecessary. Docket No. 64. 1} preferred procedure is for the Court to conduct a hearing to determine whether the party is 2|| competent and whether the Court must appoint a guardian ad litem or issue another appropriate 3], order. Krain v. Smallwood, 880 F.2d 1119, 1120 (9th Cir. 1989). The Court may dismiss the case without prejudice if the party refuses to cooperate. Id. 5 The Court is sympathetic to the challenges the current environment poses for detained 6] individuals. However, the Court finds that Plaintiff's participation in his upcoming competency 7|| hearing is necessary to determine whether he is competent and whether the Court must appoint a guardian ad litem or issue another appropriate order. 9 Accordingly, Plaintiff's motion to excuse him from participating in his upcoming 10] competency hearing is hereby DENIED without prejudice. Docket No. 63. The competency 11] hearing remains SET for 10:00 a.m. on January 14, 2021. As Plaintiff is currently housed in Ely 12|| State Prison, the Attorney General’s Office is INSTRUCTED to coordinate with the 13] undersigned’s courtroom deputy, Ari Caytuero, at 702-464-5566, to facilitate Plaintiff's video 14] conference appearance at the hearing. 16 DATED: December 11, 2020. fou A et 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28