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District court judges are not required to inquire without prompting into a pro se plaintiff’s mental competence, even where there is evidence of bizarre behavior, the 2nd U.S. Circuit Court of Appeals has ruled. Examining the scope of Rule 17(c) of the Federal Rules of Civil Procedure as it concerns the appointment of guardians ad litem or other protective measures, the 2nd Circuit said judges have broad discretion in deciding whether to conduct an inquiry into the competence of indigent plaintiffs. “We read nothing in the rule itself that obligates a district court to monitor a pro se plaintiff’s behavior for signs of mental incompetence,” Chief Judge John Walker Jr. wrote in Ferrelli v. River Manor Health Care Center, 00-9515. Plaintiff Linda Ferrelli had sued under Title VII of the Civil Rights Act of 1964 claiming she was fired from her position as a nurse in 1997 because she is white. Ferrelli argued before Eastern District of New York Magistrate Judge Steven M. Gold that she needed appointed counsel because she lacked the mental capacity and knowledge needed to participate in discovery. She also believed her former employer was conspiring to have her killed. The defendant, River Manor Health Care Center, insisted that Ferrelli was fired for failing to follow procedures for distributing controlled drugs to patients. With Ferrelli refusing to identify in discovery the employees who had discriminated against her, Magistrate Judge Gold eventually recommended that she be precluded from presenting any witnesses whose names she refused to divulge. Eastern District of New York Chief Judge Edward R. Korman adopted the recommendation and went on to grant summary judgment for River Manor. Ferrelli’s appeal, Judge Walker said, confronted the court with Rule 17(c), which he said “gives no guidance regarding the circumstances that warrant a competency inquiry, or whether a pro se plaintiff should receive special consideration under the rule.” Ferrelli had argued that the rule mandates an inquiry into competence by the judge because it states that a court shall appoint a guardian ad litem or “make other such order” as needed to protect an incompetent person. But the “duty to appoint” or “make such other order” as needed to protect an incompetent, Walker said, “arises after a determination of incompetency.” “If a court were presented with evidence from an appropriate court of record or a relevant public agency indicating that the party had been adjudicated incompetent, or if the court received verifiable evidence from a mental health professional demonstrating that the party has or is being treated for mental illness of the type that would render him legally incompetent, it likely would be an abuse of the court’s discretion not to consider whether Rule 17(c) applied,” he said. Judge Walker discussed the 4th Circuit case of Hudnall v. Sellner, 800 F.2d 377 (4th Cir. 1986), where the court declined to find a district court must conduct a “collateral judicial inquiry” into a defendant’s mental competency. “Like the Fourth Circuit,” Walker said, “we do not read Rule 17(c) to require a court to attempt to distinguish between the truly incompetent and those who — because of a personality disorder or other cause — behave in a foolish or bizarre way, hold irrational beliefs, or are simply inept.” He noted that nothing in the rule prevents judges from exercising their discretion to conduct an inquiry. Judge Walker also said the court was “mindful of the need to protect the rights of the mentally incompetent” as it set forth the standard for competency inquiries arising sua sponte, without a motion from either party. VOLUME OF CASES But given the volume of pro se cases in the 2nd Circuit (about 20 percent of the new cases filed in the Southern District of New York alone last year were pro se), Walker said the court was also concerned about the “potential burden on court administration associated with conducting frequent inquiries into pro se litigants’ mental capacity.” On appeal, Ferrelli was represented by Jonathan H. Romberg of the Center for Social Justice at Seton Hall University School of Law. Law students Janet M. Zicarelli and Peter Choy assisted. Carmelo Grimaldi of Kaufman, Schneider and Bianco in Jericho, N.Y., represented River Manor Health Care Center.

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