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Third Circuit Discusses FRCP 17(c) Guardian Appointment; Evidence of Incompetency Requires Sua Sponte Inquiry

The Third Circuit Court of Appeals has held that "a court is not required to conduct a sua sponte determination whether an unrepresented litigant is incompetent unless there is some verifiable evidence of incompetence."

Federal Rule of Civil Procedure (FRCP) 17(c) requires the appointment of a guardian ad litem to protect an incompetent, unrepresented litigant. However, few courts have considered the issue. FRCP 17(c) sets forth a duty of inquiry but the factors that trigger that duty are unclear.

Pennsylvania prisoner Kevin Powell filed a federal lawsuit in December 2007. He was granted numerous extensions of time and filed ten motions for appointment of counsel, citing "his rudimentary education and his difficulties obtaining legal assistance while in prison."

Powell was charged with threatening the President while the case was pending, and the district court over his criminal case ordered him to be sent to a psychiatric facility for four months. A court-appointed psychiatrist found Powell delusional, unable to control his conduct and of "somewhat limited cognitive abilities." The psychiatrist also stated that Powell's "persistent serious mental illness ... chronically alters his reality and his ability to conduct himself within the confines of the law." As a result, the criminal court granted the government's motion to dismiss the indictment.

When Powell was sent to the psychiatric hospital, he sought additional time to respond to the defendant's motion for summary judgment in his civil case. The district court denied the motion and said no further extensions would be granted. Powell did not respond to the summary judgment motion.

The district court noted the criminal court's rulings and its own concerns about Powell's competence. While declaring that it preferred to appoint counsel, the court did not do so because "it is difficult to find counsel willing to represent prisoners in civil rights cases." Without considering the appointment of a guardian ad litem under FRCP 17(c), the court then granted summary judgment to the defendant.

In a separate case, Delaware prisoner Detlef F. Hartmann filed a federal lawsuit and submitted eight motions for appointment of counsel, asserting unspecified "mental disabilities" and "limited access to legal materials." He also submitted a psychiatrist's letter indicating that he was being treated "for Major Depression and Attention Deficit Disorder." The doctor opined that Hartmann was not "competent ... to represent himself in court," and recommended appointment of counsel. The district court did not appoint an attorney or explicitly discuss its obligations under FRCP 17(c), and subsequently granted summary judgment to the defendants.

The Third Circuit consolidated the cases on appeal to "decide whether the District Courts erred in failing to sua sponte inquire whether Powell or Hartmann were incompetent under Federal Rule of Civil Procedure 17(c)(2) or in declining to appoint counsel or some representative for them."

Noting that "the federal courts are flooded with pro se litigants with fanciful notions of their rights and deprivations," the appellate court agreed with the Second Circuit's decision in Ferrelli v. River Manor Health Care Center, 323 F.3d 196 (2d Cir. 2003), cert. denied and the Fourth Circuit's holding in Hudnall v. Sellner, 800 F.2d 377 (4th Cir. 1986), cert. denied, concluding that "a court is not required to conduct a sua sponte determination whether an unrepresented litigant is incompetent unless there is some verifiable evidence of incompetence."

Given the extensive evidence of Powell's incompetence, the Court of Appeals directed the district court "to appoint a representative or counsel to proceed with the case" following remand. Although "the evidence of incompetency" was not as strong with respect to Hartmann, the Third Circuit held "that the district court abused its discretion in failing to at least consider the possible application of Rule 17(c)," and ordered the lower court to determine, on remand, whether Hartmann was competent within the meaning of Rule 17(c). See: Powell v. Symons, 680 F.3d 301 (3d Cir. 2012).

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Related legal case

Powell v. Symons