Powell v. Symons
| Decision Date | 30 March 2012 |
| Docket Number | No. 10-2157,No. 10-3069,10-2157,10-3069 |
| Parties | KEVIN POWELL, Appellant v. DR. SYMONS DETLEF F. HARTMANN, Appellant v. WARDEN THOMAS CARROLL; COMMISSIONER STANLEY TAYLOR; JANE BRADY, Former Attorney General; ADULT BUREAU CHIEF PAUL HOWARD; JAMES WELSH; WARDEN ROBERT SNYDER; ELIZABETH BURRIS; DEPUTY WARDEN DAVID PIERCE; FRANCENE KOBUS; MIKE LITTLE; EDWARD JOHNSON; JOHN MELBOURNE; JANE THOMPSON; LISA M. MERSON; R. VARGAS; EVELYN STEVENSON; NIKITA ROBBINS; JANET LEBAN; MICHAEL KNIGHT; JOHN MALANEY; JANE ALIE; DEBORAH RODWELLER; GAIL ELLER; OSHENKA GORDON; BRENDA HEDDINGER; NANCY DOE; R.W. DOE, IV; LARRY LINTON; KIMBERLY WEIGNER; DR. ANTHONY CANNULI; J. DOE(s) TO LXIII; JOYCE TALLEY; CARL HAZZARD; CAP. J. HENRY; MICHAEL McCREANOR; JOHN SCRANTON; IHUOMA CHUCKS |
| Court | U.S. Court of Appeals — Third Circuit |
PRECEDENTIAL
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(Reassigned to Chief Judge: Honorable Yvette Kane)
On Appeal from the United States District Court
for the District of Delaware
Before: SLOVITER, GREENAWAY, JR., Circuit Judges
and POLLAK,* District Judge
Kevin Powell
LaBelle, PA 15450
Pro Se Appellant in No. 10-2157
Kathryn M. Kenyon (Argued)
James W. Kraus
Pietragallo, Gordon, Alfano, Bosick & Raspanti
Pittsburgh, PA l5219
Attorneys for Appellee in No. 10-2157
Detlef F. Hartmann
Georgetown, DE 199947
Pro Se Appellant in No. 10-3069
Catherine C. Damavandi (Argued)
Department of Justice
Wilmington, DE 19801
James E. Drnec (Argued)
Balick & Balick
Wilmington, DE 19801
Attorneys for Appellees in No. 10-3069
Karen C. Daly (Argued)
Stephen J. McConnell
Dechert
Philadelphia, PA l9l04
Attorneys for Amicus Curiae
Rule 17(c)(2) of the Federal Rules of Civil Procedure provides that:
A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem - or issue another appropriate order - to protect a minor or incompetent person who is unrepresented in an action.
(emphasis supplied).
The Advisory Committee Notes do not elaborate on the requirement of the emphasized language above and there is but a paucity of reported decisions interpreting the provision. Although the language of the Rule makes the obligation mandatory, see Berrios v. N.Y. City Hous. Auth., 564 F.3d 130, 134-35 (2d Cir. 2009), there is no suggestion which factors should trigger the district court's duty of inquiry as to whether the individual at issue is incompetent. As a result, responsibility for Rule 17 appears generally to be left to the discretion of the district courts.
This consolidated appeal arises from two cases in which prisoners, proceeding pro se, sought damages from prison officials. The appeal calls on the court 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.
Kevin Powell, a Pennsylvania state prisoner proceeding pro se and in forma pauperis, filed suit in the Middle District of Pennsylvania in 2007 pursuant to 42 U.S.C. § 1983 against Dr. John Symons, his treating physician at SCI-Rockview. Powell asserts an Eighth Amendment claim that Dr. Symons was deliberately indifferent to his medical needs. The District Court denied Dr. Symons' motion to dismiss for failure to state a claim. Dr. Symons subsequently filed a motion for summary judgment.
Powell filed a series of motions for extensions of time and for counsel. The Magistrate Judge, exercising his authority to resolve non-dispositive pre-trial motions, granted five of Powell's requests for extensions of time to file a response and denied one request as moot. In the last order extending Powell's time to respond, the Magistrate Judge directed him to respond by February 26, 2010 and informed Powell that no further extensions would be granted. Powell's seventh motion for an extension of time to respond to Dr. Symons' motion for summary judgment explained that the District Court presiding over his criminal proceeding hadordered him to a psychiatric facility for four months and he was there without his personal property. The Magistrate Judge denied the motion and reminded Powell that no further extensions would be granted. Powell never filed a response to the motion for summary judgment.
Powell's ten motions for counsel cited his rudimentary education and his difficulties obtaining legal assistance while in prison. The Magistrate Judge denied each of Powell's motions for counsel. In so doing, the Magistrate Judge wrote that he assumed Powell's claim to have potential merit and that several of the relevant factors, including Powell's education level and the need for expert testimony, weighed in favor of appointing counsel. Although the Magistrate Judge stated that he preferred to appoint counsel, he denied counsel primarily on the ground that, in his experience, it is difficult to find counsel willing to represent prisoners in civil rights cases.
At about the same time as Powell's civil proceeding, he was charged in a criminal proceeding in the Middle District of Pennsylvania for issuing threats against the President and mailing threatening communications in violation of 18 U.S.C. §§ 871 and 876(c), respectively.1 Powell, who was represented in the criminal case by appointed counsel, pleaded guilty to those charges in January 2009. However, prior to sentencing, the District Court appointed a psychiatrist, Dr. Stefan Kruszewski, to examine Powell and prepare a written report of his findings.
Dr. Kruszewski, a graduate of Harvard Medical School, has written and spoken extensively about psychiatric issues. He has had at least 30 years of clinical practice experience in which he treated several thousand patients with a wide variety of psychiatric and neuropsychiatric conditions. He prepared an extensive report for the criminal case, setting forth details of his examination. Dr. Kruszewski concluded that Powell met the accepted diagnosis of delusional disorder, mixed subtypes, a diagnosis based on Powell's "repeated pattern of physical complaints without medical findings tosupport them, the somatic elements of his reported 'torture' and his simultaneously persistent and episodic refusal of medication." S.A. at 42. The report continued, Id.
Dr. Kruszewski wrote that Powell's "potential to act out violently against others, including those he named in his letters, is small," in part because he has "somewhat limited cognitive abilities." S.A. at 42. Dr. Kruszewski further noted that "there is a great deal of doubt that he had the capacity to form the criminal intent to harm because he has a persistent serious mental illness that chronically alters his reality and his ability to conduct himself within the confines of the law," and that "we can expect his delusional symptoms to wax and wane." Id. Notwithstanding this diagnosis, Dr. Kruszewski also found that "[a]lthough his testable fund of information was limited in certain ways . . . , Mr. Powell was able to satisfy my concern that he was able to understand the legal processes and cooperate with them to the best of his ability." S.A. at 32.
After reading and absorbing Dr. Kruszewski's diagnosis, the District Court acknowledged that Powell "may be suffering from a mental disease or defect that has rendered him mentally incompetent to the extent that he was previously unable to enter a knowing and voluntary guilty plea." S.A. at 49. However, the Court determined that Dr. Kruszewski's report did not provide the Court with sufficient information regarding Powell's competency when he pleaded guilty and ordered that Powell be committed to federal custody for further psychiatric evaluation.
In October 2009, on the basis of an additional psychiatric evaluation, the Court granted the motion of Powell's defense counsel to withdraw his guilty plea and enter a plea of not guilty to the charges in the indictment. The Court then issued an order finding that Powell "is presently suffering from a mental disease or defect rendering him mentally incompetent to understand the nature and the consequences of the proceedings now against him." S.A. at52. Subsequently, the U.S. Attorney requested dismissal of the indictment, which the Court granted in July 2010.
Turning to the civil case, the Magistrate Judge, in his last two orders denying counsel, noted the criminal court's rulings and his own concerns about Powell's mental competence. In an order entered August 2009, the Magistrate Judge concluded that although J.A. at 22. In a later order entered in March 2010, the Magistrate Judge acknowledged that since his last order Powell had been adjudicated mentally incompetent in the criminal proceeding. The Magistrate Judge stated that "[t]he fact that [Powell] has been found incompetent, of course, weighs in favor of appointing counsel." J.A. at 27. He once again denied the motion, however, based on his conclusion that "it is unlikely that counsel could be found to represent [Powell]." J.A. at 28. The Magistrate Judge did not discuss his obligations under Rule 17 of the...
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