Um, how? Hmm, versus Dr. Simon's. Okay, you guys have this first. Good morning, runners. My name is Karen Daly. I'm with the firm Deckard LLP and we've been appointed by the court as amicus on behalf of Mr. Powell in this matter. It also behalf of Mr. Hartman in the matter that you heard later on today. I do want to say right now for the court that we are most appreciative that the Deckard firm has undertaken to do this. We couldn't manage if we didn't get a don't don't time her on this. This is my time. If we couldn't get amicai from some of the law firms, especially those that are difficult cases and we are most appreciative and you'll pass that on from us please. Thank you, honor. I appreciate that. I will pass it on. Your mention of time reminds me to them, reserving five minutes for a bottle in the past. That's granted. Okay. And the issue that the court, court, asks us to look into in the Powell case is whether or not the fact that Mr. Powell was a adjudicated incompetent in parallel criminal proceedings should have caused the court below to either appoint a guardian or take other appropriate steps under rule 17 or to appoint counsel for him under tape and be grace. To do what? I didn't have to appoint counsel for him under tape and be grace. The magistrate judge elected not this case really raises an important issue
. Which is what is the obligation of the district court to appoint counsel or at least a guardian adlitum for a litigant who either has been adjudicated incompetent or who seems to be incompetent. Now, when somebody's been adjudicated incompetent, that's an easier task. But there are many, many prisoners with civil cases who could use counsel. How do you draw the line? Well, in this case, this is the easy case. Mr. Powell was adjudicated incompetent and this is the case where both the fourth circuit and the second circuit have suggested where there's a adjudication of incompetence. It's, quote, obvious according to the fourth circuit that rule 17 is implicated and some protective measures need to be taken. So in this case, there's no need to engage in difficult line drawing. It's very clear. Mr. Powell was adjudicated incompetent. He remained incompetent for a several month period and during that period of incompetency, the court below in his civil case granted some rejudgment against him. Mr. Hartman wasn't adjudicated incompetent. That is correct. Mr. Hartman is the slightly more difficult case, but even there, if the court is drawing lines and I can address this here, I can address it later. The second circuit has suggested that Mr. Hartman still falls on the side of the line where the court needs to undertake some sort of inquiry because Mr. Hartman didn't just present as having bizarre behavior. Mr. Hartman didn't just self-identify as having mental difficulties
. Mr. Hartman came forward with a letter from his treating psychiatrist that said Mr. Hartman, because of his mental diagnosed mental problems, can't represent himself. And as his treating psychiatrist, I believe he should be appointed counsel. And that's the sort of, quote, verifiable medical evidence that the second circuit had said triggers a duty of inquiry. So what did he mean by duty of inquiry? I think what that means is the court needs to take another step and look a little bit further. Again, in Mr. Hartman's case, it's fairly easy to say there was an abuse of discretion because the court simply acknowledged the fact that there was a letter from the treating psychiatrist, but didn't really do anything with it. The court, for example, did not ask the psychiatrist if she would submit an affidavit. The court did not hold an evidentiary hearing to take evidence on this. So is your view that the duty of inquiry requires a competency hearing? I don't believe no. I think that is not certainly not required in every case and probably not required in most cases. I think what's required, for example, is to just look a little bit further. It might have required, like I said, for example, a show cause order asking the psychiatrist if she would submit a sworn declaration to provide more details. That might have been an appropriate step to take in this case. A full bone competency hearing, it might be required in some cases. There's certainly some cases where district courts have looked at bizarre behavior like Mr. Hartman's, bizarre filings, and decided to hold a competency hearing. So the duty of inquiry that Ferrelli suggests is a good interim measure that you think we should adopt here? I don't know if it's adopting a bright line rule per say. I think it's more so providing some additional guidance to the lower courts that when they have this sort of verifiable medical evidence that they should take steps as they see fit to verify it. And the trial courts, of course, can decide how to best manage that. What did he suggest that Mr
. Hartman's case is a more difficult one than Mr. Powell's? I wonder whether perhaps the reverse is true. As I understand it, Hartman was said by his psychiatrist to be unable to represent himself. In Mr. Powell's case, it was a determination that he wasn't competent to stand trial because the interactions with counsel would not be helpful. But in a way that's a rather, that might be regarded as a stricter standard than whether Mr. Powell could handle the business of presenting his claim. I think in a couple of responses to that, Yarn, I think the first thing is that taking a plea as a fairly passive activity as compared to having to adjudicate one's own civil claims. And the fact that Mr. Powell was found by Chief Judge Kane of the Middle District of Pennsylvania to be unable to take a plea because he couldn't understand the consequences of his actions is very persuasive that he lacks the capacity to engage in any sort of litigation, whether civil or criminal. And Chief Judge Kane reached that determination after having Mr. Powell examined by a very well credentialed psychiatrist who presented the court with a very detailed report explaining why Mr. Powell could not take a plea. This court actually dealt with the converse situation, in a case called Ayuano versus Katenay County jail. Judge Loverd was on the panel there. And in that case Mr. Ayuano had been found competent to stand trial. And then there was a second report from his treaty medical professional suggesting that he had some additional issues that might impact his capacity to pursue civil litigation. The court below emphasized the fact that Mr. Ayuano could take a plea and was competent to stand trial. And said well if he's competent to stand trial, then we don't believe Tabern is implicated. We believe he has the capacity to litigate
. And this court in his decision found that that was a reversible error. They believe that the district court placed too much emphasis on the ability to stand trial because that requires less litigation strategy, less activity, less thought by the individual than simply standing trial. So I think the fact that Mr. Powell was found unable to take a plea in a criminal case is very, very persuasive evidence that he was not competent to represent himself either under rule 17 and also lack capacity under Tabern. The other point I would make there is that as a matter of Pennsylvania law, when an individual has been adjudicated and competent for one purpose, they're considered incompetent for all purposes. So Judge Kane's finding that he could not stand trial would actually basically bar him from pursuing civil action until that finding of incompetency was lifted. And that did not happen while his civil case was pending. So for that reason, the magistrate judge should not have granted summary judgment against him. He should have either appointed counsel under Tabern appointed a guardian under rule 17, which in Mr. Powell's case, I think would have been the most appropriate step to take. But certainly should not have just proceeded to grant summary judgment against this unprotected, unrepresented, incompetent individual. Do you have any idea how many pro-sayed litigants that we have, many of whom, if not most of whom, show some suggestion of incompetency? How can that be managed? You said, well, there was a psychiatrist in one case and you should have had the psychiatrist put in an affidavit. I'm willing to accept the psychiatrist statement without an affidavit. I don't know that the affidavit would have made much difference. Should that be done in every case? Well, I mean, how do you distinguish between the frivolous cases and the non frivolous cases? And this is really that the balancing task that the court recognized in Tabern, that there are many indigent prisoners who have some mental instability, who nonetheless have maritorious cases and needs some counsel. That's the line that Tabern drew. Tabern said, first, see if there's some threshold merit. And in both Mr. Powell's case and Mr. Hartman's, there was that threshold merit. I'll stop you right there. You do a threshold merits determination by the court without anybody representing the individual initiative
. Isn't there something, doesn't that lead to some concern? Well, I think that's unfortunately the tent, that that's where Tabern had to draw the line to address the resources concern that your honor has raised. And that's simply the way the court works. And I will say notwithstanding the fact that they did not have counsel, Mr. Powell survived a motion to dismiss. Mr. Hartman, in his case, the court conducted an initial merit review of the complaint and found some merit to it, enough to satisfy the Tabern task. Isn't it some concern now for a court to do a suespaante exparte determination? There's certainly some concern. I think the concern is heightened in a case like this, like Mr. Powell's, where he is in competence. But that's an easy case because the court has already held that he can't, doesn't have the capacity to do a criminal case. But have had all these hundreds and there were hundreds of other cases. What has to be done in those cases? I think one distinguishing factor, and this is what the Ferrelli Court has mentioned, is that the existence of verifiable medical evidence that a psychiatrist or psychologist comes forward. But they have to have a full now. Where do you get the psychiatrist? And that's going to be a very expensive proposition for the state, isn't it? Oh, I'm not saying that this needs to be done in every case that the state will have the first of all have you draw the line? It's very, it's a very difficult line drawing. Well, I know, but we have to make a decision. It's, you can say it's difficult, but we're to read through the line so that the district courts know. Well, I will say in both of these cases where someone's adjudicated and competent, that's one side of the line. These are easy cases. I'm asking if we write an opinion, we have to write an opinion for all the cases. And I'm trying to figure out what rule you would apply or what standard you would have us apply. Well, again, I'm not asking your honor for a bright line rule, but I think in Mr. Harley's case
. Well, I think we have to have a bright line rule if we write an opinion, and it comes out with them. Well, as I understand it, so you want to impose some sort of duty or requirement on district courts or magistrate judges acting at the behest of the district court under 17C. And I guess the judges question is, okay, fine, but if you're going to impose that kind of duty, we've got to give guidance as to when. Is it, when it's as simple as it seemingly is here, although I'm not going to concede that it's simple, when a psychiatrist or psychologist or some other kind of medical professional has come to a determination that the person is incompetent, or is it when a another court as in the Powell case has adjudicated someone incompetent? Should that be the bright line rule that we adopt? Does that make sense? I think to answer both your questions, certainly if someone is adjudicated and competent, that is a bright line rule. Judge Slobert's question is the more difficult one in Mr. Hartman's case. He is not adjudicated and competent, however, there's some suggestion that he can't represent himself. Well, at least he has a psychiatrist letter, but go to the other cases. The ones where there's no psychiatrist letter, there's no affidavit, or anything like that. You know, somebody says that he's getting wavelengths, what, waves from, um, Mars. I guess, let's assume that that's crazy. I can tell you where other courts have drawn the line, is that simply the fact that someone presents bizarre symptoms or advances bizarre theories in their legal filings is not enough. They've asked for something more, that something more under the second circuit's formulation is the verifiable medical evidence that second circuit existed, Mr. Hartman's case. Whether or not that makes for a workable bright line rule, or whether or not it simply means the court holds there is an abusive discretion and remains that particular case is, of course, up to the court. Maybe the rules should be that, they're up to the district court to avoid exporting us by appointing the record firm. Well, I can't commit to that in every single case, let alone in these cases. I will say, though, that the record firm does take on these sorts of cases, other firms take on these sort of cases. And in fact, the district courts, I know in the Eastern District and the District of New Jersey, actually have panels of attorneys who can take these sort of cases that present sufficient merit and where their sufficient concern about, um, a litigant's capacity. Is that true in the middle district? In the middle district, it is true. In fact, in the middle district, there's a specific local rule that the magistrate judge inexplicably did not follow, which says that if a litigant like Mr. Powell satisfies the tabern factors that the court shall conditionally appoint counsel, and the magistrate judge did not make a conditional appointment
. Instead, he simply said, even though I believe, you know, Tabern is satisfied in Mr. Powell's incompetence, of course, ways in favor of appointing counsel. I'm not going to do it because I believe counsel can't be found. So there is a local rule and there's even try the fine panel. It didn't even try and there is a bar panel and other mechanisms in place to assist him in doing that. Okay, why don't we hear from Ms. Kenyon and we'll be back to you. Good morning, Your Honours. Please excuse me. I'm unsuccessfully fighting cold, so I apologize. That's right. So is not to apologize. I will try to speak slowly so that I'm clear. My name is Katie Kenyon on behalf of Dr. Simmons in this case, and I just want to extend my thanks to Deckard as well. It was much easier reviewing their brief rather than Mr. Powell's handwritten submissions to the courts. I think the court has- Do you represent the state also? I do not. The Dr. Simmons was the only defendant in Mr. Powell's case. So there is no one else in this case
. Dr. Simmons is a private physician employed by a company who was not named as a defendant who works in these state correctional facilities for the Commonwealth. Have you been been in touch with the commonwealth at all? I would have thought the commonwealth would come in too. I was not in touch with the commonwealth at my experience. We're frequently co-defendants on some of the prisoner litigation cases and typically share interests. So perhaps that is why they did not seek to intervene in this matter. I don't necessarily agree with the classification that this is the easy case, but I certainly recognize the court's position that these cases ask one where to draw the line. I think what the court needs to do in this case, and Mr. Powell's case, is put this in a bit of perspective. With the benefit of hindsight, we're not looking as to whether or not Judge McCour and the District Court perhaps could have utilized different or better discretion. We're looking as to whether or not they were forced or were compelled to appoint counsel, which I would submit to the court that the District Court was not. Looking at this case, there is no arguable merit to Mr. Powell's claims. This is a case of deliberate indifference. It has a heightened standard. If you look at the facts of this case, Mr. Powell was seen by Dr. Simmons 15 times in less than two years. I think in this case, yes, you should. While you do have the issue with the criminal matter and what happened and the psychiatrist found that Mr. Powell was not able to understand the fact that when he was writing those letters threatening the judiciary that he was committing a federal crime, he just certainly did not understand what he was doing or the ripple effect of those decisions. You need to balance that with what his actual claims were against Dr
. Simmons. And those claims were that Dr. Simmons was ignoring his medical conditions and not providing treatment. What should we do when if I understand the facts correctly here, there is an initial 1915 review or determination by the District Court that the case can go that next step. I understand that obviously the next step is motion to dismiss, but that next step and there is information. If you whether this is difficult or easy, it doesn't matter, but there was, excuse me, a prior adjudication with regard to his competence. Now, I might agree with you hypothetically if it doesn't get passed that initial 1915 review because essentially the case would probably be over at that point. But having gotten through that review doesn't that then present a juncture in time when looking at the issue of competency is important going forward? I'm not going to say it's not important. I think it's definitely a factor to be considered. And I think the District Court here, both the magistrate judge and the district judge, did consider that finding. If you look at the timeline in this case, Chief Judge Cain sent Mr. Powell out to be examined while Dr. Simmons motion for summary judgment was pending. So at that point in time, the District Court had the evidence of record had the extensive medical record for Mr. Powell to review to determine whether or not there was arguable merit in appointing counsel. Utilizing rule 17, when the psychiatrist came back with his findings, there was a suggestion that Mr. Powell may not be able to understand what pleading guilty meant. And so Chief Judge Cain sent Mr. Powell for further examination and treatment. All that was ongoing in a parallel universe for lack of a better word with the civil matter, with Dr. Simmons motion for summary judgment pending. Mr
. Powell sought repeated requests for extension of time. He was granted them. He acknowledged that he's looking for an expert witness. He showed great familiarity with maneuvering the rules and the system. And at the time, the District Judge Smizer issued his report and recommendation to grant the motion for summary judgment. There had been no final determination by the psychiatrist in the criminal case as to what was going to happen with Mr. Powell and his competency to plead guilty. That only happened after the motion for summary judgment was granted. If you look at the actual language in rule 17 and what its purpose is, it's to prevent injustice. And in this case, Chief Judge, sorry, magistrate Judge Smizer and Judge McCleur both looked at Mr. Powell's competency, both looked at what was happening in the criminal case, reviewed the extensive medical records, the extensive record that had been submitted with Dr. Simmons motion for summary judgment and found that there was no way Mr. Powell could ever state a claim of delivering difference. Even if counsel or a guardian had been appointed, there was nothing, no discovery that could have been done, nothing that was going to change the outcome of this case. I can't agree with you, but isn't there some concern that it's being done with nobody representing the individual involved? I think that was exactly the concern that the magistrate judge and the district judge had in Mr. Powell's case, which is why when faced with an unopposed motion for summary judgment, they reviewed the case on the merits. I don't know, I'm sorry to interrupt, but I don't understand something that you said. What you said a few moments ago led me to believe that I was mistaken in the following understanding. My understanding had been that chief judge Cain made a determination with regard to Mr. Powell's competence, and then there was a summary judgment determination at a point in time later. You, when you said they were operating in parallel universes, you led us to believe a few moments ago that Judge Smizer came to his determination prior to chief judge Cain's determination. Is that what you meant? It is when, and I can clarify for you, Chief Judge Cain issued two orders in this case, in the criminal matter, one in July 2009, when the psychiatrists findings were admitted, Chief Judge Cain sent Mr. Powell for psychiatric treatment and for further evaluation. She wanted more specific findings from the psychiatrist as to Mr. Powell's capacity. She did, it alluded to him, being incompetent in that July 2009 order, but she sent it for further review, further analysis, the ultimate conclusion where he was withdrawing, where his plea was where his charges finally dismissed, did not occur until several months after the motion for summer judgment was granted. Well, in an order October 23rd of 2009, in the order it says the court finds by preponderance of the evidence that the defendant, Kevin Powell, is presently suffering from a mental disease or defect, rendering him mentally incompetent to understand the nature and consequences of the proceedings now against them. That's a finding. That is, it's a finding. And then in Chief Judge, I'm not Chief Judge, I'm sorry, magistrate Judge Smizer's order says the fact that the plaintiff has been found incompetent, of course, ways in favor of appointing counsel. I mean, that's just a line that I'm reading from the order, but I mean, clearly he knows at the time of this order, which is March 2010, which is not the same. March 2010, thank you, March 22nd, 2010, that there's been an incompetency finding. So I'm not, I'm not getting your point. It was a minor point. The remainder of the August of the October 2009 order sent Mr. Powell for further examination, further treatment. Chief Judge Kane wanted a more specific determination by the psychiatrist as to Mr. Powell's mental competency to enter the guilty play. So yes, and I believe as I had originally stated, Chief Judge Kane did state in her order that Mr. Powell was incompetent. However, she also sent him for further testing, for further examination. And those final findings did not come in until after the report and recommendation to grant Dr. Simmons, motion for summary judgment, have been granted. And I believe the magistrate judge does point that out in his report and recommendation
. Powell for psychiatric treatment and for further evaluation. She wanted more specific findings from the psychiatrist as to Mr. Powell's capacity. She did, it alluded to him, being incompetent in that July 2009 order, but she sent it for further review, further analysis, the ultimate conclusion where he was withdrawing, where his plea was where his charges finally dismissed, did not occur until several months after the motion for summer judgment was granted. Well, in an order October 23rd of 2009, in the order it says the court finds by preponderance of the evidence that the defendant, Kevin Powell, is presently suffering from a mental disease or defect, rendering him mentally incompetent to understand the nature and consequences of the proceedings now against them. That's a finding. That is, it's a finding. And then in Chief Judge, I'm not Chief Judge, I'm sorry, magistrate Judge Smizer's order says the fact that the plaintiff has been found incompetent, of course, ways in favor of appointing counsel. I mean, that's just a line that I'm reading from the order, but I mean, clearly he knows at the time of this order, which is March 2010, which is not the same. March 2010, thank you, March 22nd, 2010, that there's been an incompetency finding. So I'm not, I'm not getting your point. It was a minor point. The remainder of the August of the October 2009 order sent Mr. Powell for further examination, further treatment. Chief Judge Kane wanted a more specific determination by the psychiatrist as to Mr. Powell's mental competency to enter the guilty play. So yes, and I believe as I had originally stated, Chief Judge Kane did state in her order that Mr. Powell was incompetent. However, she also sent him for further testing, for further examination. And those final findings did not come in until after the report and recommendation to grant Dr. Simmons, motion for summary judgment, have been granted. And I believe the magistrate judge does point that out in his report and recommendation. This case has parallels with the Hudd and L decision out of the fourth circuit, wherein the fourth circuit found that an adjudication of incompetencies certainly would trigger rule 17, but in language that I think is quite pertinent in this case stated that even if, if the plaintiff in the Hudd and L case had been found incompetent, the court would only have to exercise and inform discretion or to provide other adequate means of protection for the plaintiff in that case. And what was I be? My position on behalf of Dr. Simmons is that the court at two levels, the magistrate judge level on the district judge level, did take Mr. Powell's interest into consideration. It did not just blink at Lee Grant's and unimposed motion for summary judgment, but rather reviewed the extensive record on this case on the merits and found presumably given the outcome that there was no way Mr. Powell was going to be able to state a claim. It's akin to the two-pronged test that this rule court enumerated with regard to the tabon factors. You don't get to those factors unless or until there's an arguable basis in fact and law. Here at no time to Mr. Powell ever have an arguable basis in law. There was never any position that he was going to be able to take with or without counsel with or without a guardian that there was more than extremely thin chance of success in the merits. There wasn't even an extremely thin chance. There was a zero percent chance of success in the merits when faced with the complete and comprehensive medical care that Dr. Simmons rendered in this case. I have some hesitation about that. Having the court of appeals make a determination as to the possible merits of the case, meaning no disrespect to my colleagues on the panel. I'm not sure that this is the optimal tribunal to be determining initially, whether there's a case on the merits, but I had a different question. In Mr. Powell's case, we have a determination by a judge that Mr. Powell is incompetent to stand trial. That fact becomes known to the magistrate judge. But what assurance would we have that that communication would always be made? Suppose they were a determination in another district that a Mr
. This case has parallels with the Hudd and L decision out of the fourth circuit, wherein the fourth circuit found that an adjudication of incompetencies certainly would trigger rule 17, but in language that I think is quite pertinent in this case stated that even if, if the plaintiff in the Hudd and L case had been found incompetent, the court would only have to exercise and inform discretion or to provide other adequate means of protection for the plaintiff in that case. And what was I be? My position on behalf of Dr. Simmons is that the court at two levels, the magistrate judge level on the district judge level, did take Mr. Powell's interest into consideration. It did not just blink at Lee Grant's and unimposed motion for summary judgment, but rather reviewed the extensive record on this case on the merits and found presumably given the outcome that there was no way Mr. Powell was going to be able to state a claim. It's akin to the two-pronged test that this rule court enumerated with regard to the tabon factors. You don't get to those factors unless or until there's an arguable basis in fact and law. Here at no time to Mr. Powell ever have an arguable basis in law. There was never any position that he was going to be able to take with or without counsel with or without a guardian that there was more than extremely thin chance of success in the merits. There wasn't even an extremely thin chance. There was a zero percent chance of success in the merits when faced with the complete and comprehensive medical care that Dr. Simmons rendered in this case. I have some hesitation about that. Having the court of appeals make a determination as to the possible merits of the case, meaning no disrespect to my colleagues on the panel. I'm not sure that this is the optimal tribunal to be determining initially, whether there's a case on the merits, but I had a different question. In Mr. Powell's case, we have a determination by a judge that Mr. Powell is incompetent to stand trial. That fact becomes known to the magistrate judge. But what assurance would we have that that communication would always be made? Suppose they were a determination in another district that a Mr. Powell was incompetent to stand trial. Without some representation that would be, in a sense, adversary or at least informative for the district judge. It's not at all clear to me that that information would necessarily be communicated. You're on a give raise to points. And the first I'll address briefly. I don't think this court needs to review on the merits. Dr. Simmons' motion for summary judgment. I think that this is the standard to be utilized here in appointing counsel and even the utilization or the implementation of rule 17 is an abusive discretion. So this court needs to see whether or not the district court abused its discretion and not appointing a guardian or not appointing counsel, not necessarily reaching the merits. With regard to your second point, this court sits in an unenviable task, given the tremendous amount of pro-state prisoner litigation that does exist. Certainly can appreciate that. However, I think that there are multi-factors that would be considered in Mr. Powell's case. If he had been, if this criminal matter had been taking place in Texas, for example, I would think that the district court would be able to discern from his handwritten submissions that there would be a red flag raised, that there would be an issue. They could look to Mr. Powell's submissions. They could set a hearing. They could look on PASER, add a few clicks of a button and pull up his entire criminal or civil history and any other jurisdiction, and gain that knowledge that might be beneficial to the court and disarm any whether or not the next step of competency hearing or due process hearing or appointing counsel regarding even conditionally would need to take place. We've been asking about line drawing and I'm confused with your position. Maybe you can help me. Just dealing with 17 C for a moment
. Powell was incompetent to stand trial. Without some representation that would be, in a sense, adversary or at least informative for the district judge. It's not at all clear to me that that information would necessarily be communicated. You're on a give raise to points. And the first I'll address briefly. I don't think this court needs to review on the merits. Dr. Simmons' motion for summary judgment. I think that this is the standard to be utilized here in appointing counsel and even the utilization or the implementation of rule 17 is an abusive discretion. So this court needs to see whether or not the district court abused its discretion and not appointing a guardian or not appointing counsel, not necessarily reaching the merits. With regard to your second point, this court sits in an unenviable task, given the tremendous amount of pro-state prisoner litigation that does exist. Certainly can appreciate that. However, I think that there are multi-factors that would be considered in Mr. Powell's case. If he had been, if this criminal matter had been taking place in Texas, for example, I would think that the district court would be able to discern from his handwritten submissions that there would be a red flag raised, that there would be an issue. They could look to Mr. Powell's submissions. They could set a hearing. They could look on PASER, add a few clicks of a button and pull up his entire criminal or civil history and any other jurisdiction, and gain that knowledge that might be beneficial to the court and disarm any whether or not the next step of competency hearing or due process hearing or appointing counsel regarding even conditionally would need to take place. We've been asking about line drawing and I'm confused with your position. Maybe you can help me. Just dealing with 17 C for a moment. What situation would you say that it's appropriate to appoint counsel? Would the, let again, have to get past 1915, a 1915 determination and establish that there were genuine issues as to the genuine disputes now as to material facts in order for there to be an appointment because, I mean, certainly it doesn't really make sense for there to be a burden on an incompetent person to create or establish genuine disputes. Well, I think it needs to be case by case. It's going to be very difficult to have a bright line rule, a hard-in-line test to be utilized. However, there can be... We do then. There are factors to be considered and while an incompetent person may not necessarily be able to present issues, genuine issues, material issues that would survive summary judgment, even an incompetent person through their initial claims would be able to present a claim that could arguably succeed. We're going to require a, I'll just create a profile, a paranoid schizophrenic who thinks that everybody is prepared to kill him to... We're going to require him to establish enough in his papers without the advice of counsel. In certain circumstances, yes. That has to be weighed with... With in this case, Dr. Simmons, as a professional doctor being sued, can any professional, can any delusional person on the street file a lawsuit? Technically, yes, because the competency issue does not surface until later, yet at that point in time, they've already named a professional in a lawsuit and had that professional have to incur potential skateboard investigation fees for defense. There needs to be some type of balance, not balance is looking at the actual merits. It's not just presenting..
. What situation would you say that it's appropriate to appoint counsel? Would the, let again, have to get past 1915, a 1915 determination and establish that there were genuine issues as to the genuine disputes now as to material facts in order for there to be an appointment because, I mean, certainly it doesn't really make sense for there to be a burden on an incompetent person to create or establish genuine disputes. Well, I think it needs to be case by case. It's going to be very difficult to have a bright line rule, a hard-in-line test to be utilized. However, there can be... We do then. There are factors to be considered and while an incompetent person may not necessarily be able to present issues, genuine issues, material issues that would survive summary judgment, even an incompetent person through their initial claims would be able to present a claim that could arguably succeed. We're going to require a, I'll just create a profile, a paranoid schizophrenic who thinks that everybody is prepared to kill him to... We're going to require him to establish enough in his papers without the advice of counsel. In certain circumstances, yes. That has to be weighed with... With in this case, Dr. Simmons, as a professional doctor being sued, can any professional, can any delusional person on the street file a lawsuit? Technically, yes, because the competency issue does not surface until later, yet at that point in time, they've already named a professional in a lawsuit and had that professional have to incur potential skateboard investigation fees for defense. There needs to be some type of balance, not balance is looking at the actual merits. It's not just presenting... How anyone representing the individual, that's what concerns me. Not every individual is going to be able to present a colorable claim. It's not... How do you know unless that individual has someone representing him or her? If it's colorful. It's a dilemma. It is a dilemma. It's one that must be balanced, and I think that then a certain case is going to cough or have other cases such as Mr. Pals. There's certainly no reason to waste... How is easy? What about heart men? Well, I think the same principle applies. I don't think they're all that distinguishable in that regard. You have to balance wasting, volunteer attorney's time and resources to take on these cases with the chance of that case ever having any success on the merits. It's just a chance. It's not having a chance of winning. It's surviving to some redudgement. It's a likelihood that there is some merit to the claim. And I think the judiciary, both of the district court and certainly at this level, is capable of discerning through a lot of these pro-safe finalings, whether or not there is any arguable claim or merit. Well, if a claim gets past 19, the initial 19
. How anyone representing the individual, that's what concerns me. Not every individual is going to be able to present a colorable claim. It's not... How do you know unless that individual has someone representing him or her? If it's colorful. It's a dilemma. It is a dilemma. It's one that must be balanced, and I think that then a certain case is going to cough or have other cases such as Mr. Pals. There's certainly no reason to waste... How is easy? What about heart men? Well, I think the same principle applies. I don't think they're all that distinguishable in that regard. You have to balance wasting, volunteer attorney's time and resources to take on these cases with the chance of that case ever having any success on the merits. It's just a chance. It's not having a chance of winning. It's surviving to some redudgement. It's a likelihood that there is some merit to the claim. And I think the judiciary, both of the district court and certainly at this level, is capable of discerning through a lot of these pro-safe finalings, whether or not there is any arguable claim or merit. Well, if a claim gets past 19, the initial 19... Okay. Thank you. Okay. If a claim gets past the initial 19-15 review that the court does, isn't that the juncture at which we should make a determination? Or are you suggesting that it should come later in the process? Well, the district court is the first time they're looking at these cases is on a motion to dismiss, typically at the 12-B-6 stage. And that's where the Ariana cases is quite distinguishable because that was a motion to dismiss. There was no record established. The district court didn't have the benefit of looking at anything. And Mr. Powell's case and its minor senior Mr. Hartman's as well, these were cases at the motion for summary judgment level. There was a record that had been established and the court can look through that record in a light most favorable to, in this case, Mr. Powell or Mr. Hartman and see whether or not there is any arguable merit to the claims. And there was not in other case. Thank you. Thank you. I sure that too that you've undertaken sort of the whole responsibility that would wouldn't there only be the states. I think only by default because the state was not named and I certainly wasn't going to join them. Yeah. I will
... Okay. Thank you. Okay. If a claim gets past the initial 19-15 review that the court does, isn't that the juncture at which we should make a determination? Or are you suggesting that it should come later in the process? Well, the district court is the first time they're looking at these cases is on a motion to dismiss, typically at the 12-B-6 stage. And that's where the Ariana cases is quite distinguishable because that was a motion to dismiss. There was no record established. The district court didn't have the benefit of looking at anything. And Mr. Powell's case and its minor senior Mr. Hartman's as well, these were cases at the motion for summary judgment level. There was a record that had been established and the court can look through that record in a light most favorable to, in this case, Mr. Powell or Mr. Hartman and see whether or not there is any arguable merit to the claims. And there was not in other case. Thank you. Thank you. I sure that too that you've undertaken sort of the whole responsibility that would wouldn't there only be the states. I think only by default because the state was not named and I certainly wasn't going to join them. Yeah. I will. Okay. Thank you. Is there any question? Go ahead. Yeah. Is there any question in this case on the merits that Dr. Simon wasn't negligent? I mean, it seems to me you said 15, somebody said 15 times. Shouldn't we just affirm the summary judgment in this case? Well, it was Dr. Simon's counsel who said 15 times. And what I would say is Mr. Powell's, well, not Mr. Powell's counsel, we're a court appointed amicus. If I were Mr. Powell's counsel, I might have some answer to you on the merits, but that's not what I was asked to look into. No, I understand that. But still, but here's what I can tell you. I can tell you that Mr. Powell's didn't just survive the initial 1915 merits review. They survived emotion to dismiss, notwithstanding his handicaps of being mentally, he's mental incapacities, mental incompetent, very low education, borderline retardation, depends on other prisoners to write his handwritten filings for him. Is that what's that best emotion to dismiss? You can tell by looking at what happened. I mean, what are you envision happening? Suppose we do what you want and reverse and remand, remand for what? I think in Mr. Powell's case, you remand for the appointment of counsel and or guardian ad lightum as the district court. What does this guardian ad lightum and will be somebody who doesn't know the law? So the under rule 17, I know it does say guardian ad lightum
. Okay. Thank you. Is there any question? Go ahead. Yeah. Is there any question in this case on the merits that Dr. Simon wasn't negligent? I mean, it seems to me you said 15, somebody said 15 times. Shouldn't we just affirm the summary judgment in this case? Well, it was Dr. Simon's counsel who said 15 times. And what I would say is Mr. Powell's, well, not Mr. Powell's counsel, we're a court appointed amicus. If I were Mr. Powell's counsel, I might have some answer to you on the merits, but that's not what I was asked to look into. No, I understand that. But still, but here's what I can tell you. I can tell you that Mr. Powell's didn't just survive the initial 1915 merits review. They survived emotion to dismiss, notwithstanding his handicaps of being mentally, he's mental incapacities, mental incompetent, very low education, borderline retardation, depends on other prisoners to write his handwritten filings for him. Is that what's that best emotion to dismiss? You can tell by looking at what happened. I mean, what are you envision happening? Suppose we do what you want and reverse and remand, remand for what? I think in Mr. Powell's case, you remand for the appointment of counsel and or guardian ad lightum as the district court. What does this guardian ad lightum and will be somebody who doesn't know the law? So the under rule 17, I know it does say guardian ad lightum. But that's also rule 17 for children, for minors. Minors or I believe it's, I'm not sure if the language is incompetent or incapacitated persons, but certainly covers someone like Mr. Powell as well. Yeah, but that's what I don't understand. Or if I can understand a guardian for a minor because the rule covers that too. But in a case like this, what would a guardian ad lightum do that an attorney couldn't do? In a case like this, I don't see anything the guardian ad lightum could do, which is why I think it makes more sense to a point counsel. And that could be done under rule 17 as well as in other appropriations. Where are you going to say, I think the magistrate judge said, you know, they won't be counsel. All right, I think the magistrate judge shouldn't at least go now to try to see if there are counsel because there are good people like you people who might represent him. But you know, but you people are busy also. How do you get the camp? Maybe there's a law school. Trouble with depending on law schools is that if it comes up in the summer, there's nobody there anymore. We have dealt with these problems before. And in fact, we actually brief this case in connection with the University of Pennsylvania. They have a palette lock clinic. So you're correct. That's one resource. This isn't unusual case, though, where someone is a dueticated and competent. There aren't that many people like Mr. Powell out there. Yeah, but what do you do before you get to that point? I mean, how do you have this? How does a district judge who's busy with a lot of other cases handle this? I mean, I've never been a district judge, but he is and he was. So how do you handle that? There has to be a right line rule, but what is it? Well, I'm not sure if there has to be a right line rule, but in this case, where the magistrate judge realized that Mr
. But that's also rule 17 for children, for minors. Minors or I believe it's, I'm not sure if the language is incompetent or incapacitated persons, but certainly covers someone like Mr. Powell as well. Yeah, but that's what I don't understand. Or if I can understand a guardian for a minor because the rule covers that too. But in a case like this, what would a guardian ad lightum do that an attorney couldn't do? In a case like this, I don't see anything the guardian ad lightum could do, which is why I think it makes more sense to a point counsel. And that could be done under rule 17 as well as in other appropriations. Where are you going to say, I think the magistrate judge said, you know, they won't be counsel. All right, I think the magistrate judge shouldn't at least go now to try to see if there are counsel because there are good people like you people who might represent him. But you know, but you people are busy also. How do you get the camp? Maybe there's a law school. Trouble with depending on law schools is that if it comes up in the summer, there's nobody there anymore. We have dealt with these problems before. And in fact, we actually brief this case in connection with the University of Pennsylvania. They have a palette lock clinic. So you're correct. That's one resource. This isn't unusual case, though, where someone is a dueticated and competent. There aren't that many people like Mr. Powell out there. Yeah, but what do you do before you get to that point? I mean, how do you have this? How does a district judge who's busy with a lot of other cases handle this? I mean, I've never been a district judge, but he is and he was. So how do you handle that? There has to be a right line rule, but what is it? Well, I'm not sure if there has to be a right line rule, but in this case, where the magistrate judge realized that Mr. Powell was incompetent. Yeah, but I'm not getting this is an easy case. And in fact, that's why you were appointed. But what about the hundreds of other cases? Well, in the hundreds of other cases, and I'm sure we'll get into this more with Mr. Hartman's argument, I think the touchstone is something more than self-reporting by the individual. There needs to be something that the court sees and it might be the verifiable evidence from a psychiatrist. It might be that the court on its own looks at the person's files as you know, I'm concerned here. I'm concerned enough to inquire further. But Mr. Powell's case, as you said, it's the easy case using Mr. Hartman. I'm sure we do. I already heard. Quite a bit, but again, in Mr. Hartman's case, it wasn't just happens, as you've said, in hundreds and hundreds of prostate cases. It was Mr. Hartman presenting filings that were very questionable in their lucidity and grasp on reality. And there was Mr. Hartman's psychiatrist telling the court that she believed he needed military. So the the the the bright line, which both of you have, I think, skillfully dodged, if I may, I'm defect, could possibly be for Reli's verifiable medical evidence. It very possibly could be. That's what the second circuit is sound appropriate and it seems to me not that we want to follow them, but that's a possible iteration
. It is a possible iteration that one other court has adopted. Thank you very much. Thank you both for arguing this difficult case