Grant v. Nev. Disability Advocacy & Law Ctr.

• Court: U.S. District Court — District of Nevada
• Writing for the Court: C.W. Hoffman, Jr. United States Magistrate Judge
• Decision Date: 19 August 2015
• Docket Number: Case No. 2:14-cv-01640-JCM-CWH
• Citation: Grant v. Nev. Disability Advocacy & Law Ctr., Case No. 2:14-cv-01640-JCM-CWH (D. Nev. Aug 19, 2015)
• Parties: GREGORY G. GRANT, Plaintiff, v. NEVADA DISABILITY ADVOCACY AND LAW CENTER, Defendant.

GREGORY G. GRANT, Plaintiff, v. NEVADA DISABILITY ADVOCACY AND LAW CENTER, Defendant.

Case No. 2:14-cv-01640-JCM-CWH

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

August 19, 2015

ORDER

On April 13, 2015, the United States Court of Appeals for the Ninth Circuit entered an Order vacating this Court's order of dismissal and judgment and remanding the case for this Court to consider whether Plaintiff Gregory P. Grant should be appointed a guardian ad litem. (Order (Doc. #14).) This Court subsequently entered an Order directing Plaintiff Grant to identify or provide to the Court a copy of the state court order declaring Plaintiff Grant incompetent. (Order (Doc. #20) at 2.) The Court stated that upon receipt of the information regarding the state court order declaring Plaintiff Grant incompetent, the Court would set a hearing to address Plaintiff Grant's claim of incompetency in this case. (Id.)

On June 19, 2015, Plaintiff Grant filed a response stating that he did not have access to his state court file. (Resp. to Court Order (Doc. #21) at 1.) However, Plaintiff Grant stated that he was found incompetent in the state district court case number 07C238597, which was on appeal to the Nevada Supreme Court in case number 63641. (Id.) This Court accessed the Nevada Supreme Court's public docket for case number 63641 and found that on July 17, 2015, the Nevada Supreme Court entered an Order of Affirmance holding that there was substantial evidence supporting the state district court's conclusion that Plaintiff Grant was competent to stand trial. Gregory Gary Grant v. The State of Nevada, No. 63641, at 2-3 (Nev. Jun. 17, 2015). The Nevada Supreme Courtacknowledged, however, that Plaintiff Grant had received treatment for mental illness, previously was found to be incompetent, and that doubts regarding his competency had delayed the state court case for several years. (Id. at 1-3.) A copy of the Nevada Supreme Court's Order of Affirmance is attached to this Order.

In light of Plaintiff Grant's inability to provide the Court with the requested information regarding his previous findings of incompetency, as well as his representations that he currently is incompetent, illiterate, and indigent, the Court finds that it is appropriate to appoint an attorney for the limited purpose of representing Plaintiff Grant at the competency hearing. Under "exceptional circumstances," the Court may request an attorney to represent a person who is unable to afford an attorney. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (quotation omitted); 28 U.S.C. § 1915(e)(1). "A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the issues involved. Neither of these factors is dispositive and both must be viewed together before reaching a decision." Terrell, 935 F.2d at 1017 (quotation omitted).

Given that Plaintiff Grant's initiating documents related only to his request for a guardian ad litem and that he has not yet filed a complaint in this case, the Court is unable to evaluate the likelihood of success on the merits. Thus, the first factor is neutral. As for the second factor, given the unusual nature and complicated procedural posture of this case, the difficulties associated with obtaining the state court records regarding any previous incompetency findings, and Plaintiff Grant's representations regarding his current incompetency, the Court finds that it will be extremely difficult for Plaintiff Grant to represent himself at the competency hearing. Additionally, appointment of an attorney is justified as the competency hearing "will undoubtedly proceed more efficiently and effectively" if Plaintiff Grant has an attorney. Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000) (per curiam). The Court therefore finds exceptional circumstances exist warranting the appointment of an attorney to represent Plaintiff Grant for the limited purpose of the competency hearing.

IT IS THEREFORE ORDERED that this case is referred to the Pilot Pro Bono Program adopted in General Order 2014-01 for the purpose of identifying an attorney willing to be appointedas a pro bono attorney for Plaintiff Grant. The scope of the appointment will be for the limited purpose of representing Plaintiff Grant at the hearing regarding Plaintiff Grant's claim of incompetency. The Court will schedule the hearing upon appointment of a pro bono attorney.

IT IS FURTHER ORDERED that the Clerk of Court must forward this order to the Pro Bono Liaison.

DATED: August 19, 2015.

/s/_________

C.W. Hoffman, Jr.

United States Magistrate JudgeAn unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.

IN THE SUPREME COURT OF THE STATE OF NEVADA

GREGORY GARY GRANT, Appellant,

vs.

THE STATE OF NEVADA, Respondent.

No. 63641

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree kidnapping, battery with a deadly weapon, assault, making a bomb threat, and possession or transportation of a hoax bomb. Eighth Judicial District Court, Clark County; James M. Bixler, Judge.

This matter arose when appellant Gregory Grant kidnapped his neighbor because Grant believed his neighbor was a member of a cult that was trying to kill Grant. Doubts regarding Grant's competency delayed the proceedings for several years, but the district court eventually found Grant competent and the case proceeded to trial. The jury found Grant guilty on several counts,¹ and the district court adjudicated Grant guilty but mentally ill, sentenced Grant, and entered a judgment of conviction accordingly. Grant now appeals.Substantial evidence supports the district court's competency finding

Grant first contends that substantial evidence does not support the district court's conclusion that Grant was competent to stand trial.

A criminal defendant is competent to stand trial if he understands the charges and proceedings and "has sufficient present ability to consult with" and assist his counsel in his defense. Dusky v. United States, 362 U.S. 402, 402 (1960) (internal quotation marks omitted); see also NRS 178.400(2) (defining "incompetent"). Grant does not claim that he did not understand the charges or proceedings, so the only issue is whether substantial evidence supports the district court's finding that Grant was able to consult with and assist his counsel.

Several facts weigh against the district court's competency finding. These facts include the bizarre circumstances of the underlying crimes, previous diagnoses and findings of incompetency, the existence of a special guardian empowered to make Grant's medical decisions, Grant's refusing to speak to counsel outside of court, and Grant's trial testimony that he believed counsel was involved in the cult. At the final competency hearing, Dr. Norton Roitman testified that Grant suffered from paranoid delusions, rendering him incapable of assisting his counsel.

That being said, several facts weigh in favor of the district court's competency finding. Grant spoke with and passed notes to his counsel in court and spoke with the district court on multiple occasions. One doctor from Lake's Crossing Center, where Grant went for competency evaluations and treatment, testified that the failure of antipsychotic medications to produce any beneficial effect suggested that Grant was not, in fact, psychotic. Further, four doctors from Lake's Crossing found Grant competent at various times in the months and yearspreceding the final competency hearing in January 2012. All four of these doctors came to the same conclusion: Grant was able to assist his counsel but chose not to do so. At the January 2012 competency hearing, Lake's Crossing doctors testified that Grant suffered from a paranoid personality disorder that made him distrustful but did not prevent him from cooperating with counsel. Grant could "turn[ ] off his" suspiciousness at will to meet his needs. One doctor testified that Grant bragged that he had Lake's Crossing "in a scramble" and said a speedy trial was not necessarily a good thing. These statements gave the doctors the impression that Grant chose not to cooperate with his counsel or the competency evaluation process to delay the proceedings and exert control over his circumstances. The doctors did not observe any symptoms of paranoid delusions that might prevent Grant from cooperating with his counsel.

Although Dr. Roitman testified that Grant's refusal to cooperate with his counsel was beyond Grant's control, the Lake's Crossing doctors testified that Grant simply chose not to cooperate and could change his mind. It is the district court's task to resolve conflicts in the evidence regarding competency, Tanksley v. State, 113 Nev. 844, 847, 944 P.2d 240, 242 (1997), and we conclude that substantial evidence supports the district court's competency finding, see Calvin v. State, 122 Nev. 1178, 1182, 147 P.3d 1097, 1099 (2006).

To the extent Grant argues that the district court abused its discretion by failing to hold another competency hearing closer to trial, we disagree. Grant's counsel expressed ongoing competency concerns, but Grant's condition and behavior had not changed, and we cannot conclude that the district court abused its discretion by refusing to hold anothercompetency hearing simply because Grant continued his difficult behaviors. See Melchor-Gloria v. State, 99 Nev. 174, 180, 660 P.2d 109, 113 (1983).

The district court properly allowed Grant to prevent his counsel from pleading not guilty by reason of insanity on Grant's behalf

Grant next contends that even if the district court properly found him competent to stand trial, he was incompetent to decide whether to plead not guilty by reason of insanity.

As an initial matter, Grant argues that preventing his counsel from pleading not guilty by reason of...