and she's not representing part oh ok all right thank you was not to be construed to a sponsor however there had to be some type of medical evidence whether it was an adjudication of competency or whether there was some type of medical documentation or testimony that would trigger the court's inquiry six claim that there's no possible merit in fact in reviewing for this case it did come across one case from delaware from one thousand nine hundred nine where an inmate claimed that the prison officials had burned pornographic images into his retinas clearly the person is either a very good science fiction writer or has some type of mental disability but that should not trigger the inquiry for the court to to look into the person's confidence  that this is really bizarre and they couldn't the fact well that the courts concerned should be whether justice is whether the person's interests are protected and in this situation if a court were to inquire each time  where there is not an allegation that the person has suffered some type of injury that's that's plausible that would cause the court says the district courts to be overburdened instead of cases that they normally would dismiss would have to reconsider them that's why it's important to have that the documentary evidence the testimonial evidence or the adjudication of incompetency in order to go forward we also have to look at the statute that permits the district court to request  pleasanton house and was that the housing authority in august of this year that it's the request is whether they may request counsel not whether they're entitled to cancel the other thing that's important for the court to consider is  they noted that the standard should be that there is an actual documentation of incompetency so then the second get that that would be presented such as a person who has an adjudication below it is a much higher standard than what the amicus is is urging the court to adopt and that does also recognize that there is a very real scarcity in counsel who can take forty six that's the type of documentary evidence that the court would be looking for in order to make it permissive for the district court to inquire as to the competency of the litigant then the next step which we see applied in the obama case is that the court will then make an inquiry as to whether appointing a guardian ad litum would actually protect the indigent or incompetence interests and in that case  because the claims were still very bizarre although there was the adjudication of incompetence the court determined that appointing a counsel or guardian ad litum would not protect the person's interests because the claims were frivolous so when looking at the although there's the adjudication of incompetence when they look at the documentary medical evidence with all of the the fifteen medical appointments the question becomes is that going to be wasteful to appoint a guardian ad litum when ultimately  think that that's enough to spark a duty to him why it is not for two reasons first of all when we apply rule seventeen c the standard is for the incompetency we have to go back to the state level and in looking at the delaware incompetency of the dell reports have ruled for example in powers booth vs powers booth that a person who suffers from major depression that depression is not sufficient to trigger legal incompetency and here we have to look at distinction between a medical professional who is telling the court or advising somebody and in the letter that they there is some type of mental illness mental illness does not automatically equate to legal inco but if you're if you're a imploring us too apply for ellie that the only standard we need is is that sufficient for duty of inquiry and that how is it a judge to look at a medical professionals determination as to whether someone's competent versus incompetent here the doctors are incompetent and how could that it would not trigger a duty of inquiry because there is no standard that's listed as to how the medical professional reach that determination we look in the special appendix pages twenty six to forty six that is a very detailed report on what tests for use here this is just a meal mere letter that may have been written at the request of mr hartman saying please this is my seventh request for counsel this could probably get me an attorney to represent my interests that is unfortunately create such a low standard that the the district courts would be flooded with with inquiries as to persons incompetence because doctors would be irresponsible in providing the letter know what the doctor stated is that the doctor is treating this person for major depression and attention deficit disorder and we look at what the standard is in delaware those do not constitute legal incompetence so therefore that would not be sufficient to trigger the person's confidence does it have to be legal incompetence it would from what the woman bar well for the purposes of seventeen c it's a guardian ad litum to represent a person's interests so that goes back again to the delaware standard which is whether a person has the capacity to understand the nature of the claims that are brought against them and that's a higher standard than what the amicus is urging this court to adopt your honor as i see that my head that's right this is our time  who right it's under rule seventeen be one and it's also instructive to look at rule twenty five s specifically rule twenty five b which is substitution of counsel that when a party that was originally competent at the start of the litigation concern seems to go back to whether or not an individual has a right to pursue every claim i believe that was brought up and when the discussion of power case and when we look at cases such as lewis versus casey we're talking about access to the courts and whether a law library is sufficient the u s supreme court has held that the person must generally state their claims but there's really no right to raise every single possible claim that could be brought before the court so the court of course has to strike a delicate balance between persons who want to bring their claims before the court and who are indigent and so they have to be very mindful not only of the the limited resources of the district court below which would require unfortunately a much narrower  reading of the inquiry into incompetency so just to go back as to what test the state apple is would order this court to adopt is for ellie versus river matter health care and the perry versus obama case where the court took a second step and asked whether or not if the court was going to appoint a guardian ad litem whether that person's interest would be protected in the appointment and another way of standing it as the court did was whether appointment would be futile whether the claims could actually go forward so it's important to know whether the what evidence the amicus has shown us how the outcome would have been different if for example further disk every had been conducted or whether there was depositions or or additional discovery because in both cases there's a very clear medical record here that would there and there's also no material issue or disputed fact and i think if there was a missed material dispute a fact then the court would be more inclined the district court would be to seek to appoint counsel let me ask you this question is the mention of the special circumstances language from smith day a sufficient reason in a number itself for bursal since that case has questionable like how do you have to after a paper on well the special circumstances inquiry is one of the other circuits have the exceptional circumstances so the special circumstances is lower here now in applying the tehran factors mr hartman his circumstances did change by the time he filed his seventh motion for appointment of counsel in that he was no longer incarcerated so some of the factors where we're looking at for special circumstances that would normally apply to an incarcerated person are unfortunately way against mr hartman for example his ability to conduct discovery while he filed his first six motions for appointment of counsel he was incarcerated and that fact or the special circumstances would weigh in his favor but he is limited in conducting his discovery because of his limited mobility now that he's been released in july of two thousand and nine or actually was released in the summer of two thousand and eight by the time the seventh motion is filed that factor no longer weighs in his favor in addition the ability to seek and pursue counsel now that he's been released that also weighs in a different factor a special circumstances than it did when he was incarcerated are you not concerned about the fact that when these decisions that you're talking about the courts and they are being made without anybody representing the individual well the object of war of this us just doing all this without any by the representing mr powell mr hartman right or the myriad other people out there in responding to that question a person's interest should always be protected and counsel should always be appointed in either a civil case or a criminal case where a person's interest liberty interests are at stake so that's where the sixth amendment is implicated that's why courts will routinely appoint counsel when someone is facing criminal charges similarly the district courts have applied that role in cases where if the outcome of the hearing would require the unrepresented plaintiff to suffer some type of deprivation of their liberty counsel is appointed in these cases these are private rights of actions brought by indigent persons so by their their rights that the constitution gives them because the eighth amendment about their private rights of action for money damages and the question becomes should well the man always for money damages my the way sometimes there for injunctions but the sue money damages right and if if that is the standard then it's creating of a difference between a person who is not i apologize my understanding of the question was just generally looking at engine cases vs appointed cases and special circumstances now my question was is that the person and to cancel or some kind of representation when a decision is being made that a case is too frivolous to proceed and what's important there is for there to be some reliable in disha for the district cour the district judge first of all it would first of all have to hinge upon the detailed nature of the submission by the medical person and oh my i'm sorry like for example if if there was a certain test that was performed and then this this person who is writing the medical document states that i have tested him and he is not able to comprehend the consequences of its actions or the the nature of the legal proceedings against him would be one part of it however the other part and that's what applies to this case is judge robinson is very familiar with mr hartman he's splitting gated in district court numerous times and he's also filed numerous appeals to the court of appeals as well as the the state courts in addition so in looking at mr hartman's legal ackermann and legal ability throughout the litigation which continued even after the summary judgment decision that would probably be something that the courts may want to gravitate towards however the discretion always has to be for the district court however recognizing that  recognizing that if this if the standard is merely a letter from a medical provider that just would cause the district courts to be overwhelmed in conducting these type of competency hearings that's what we're concerned about and that's why  the state apple is urged the court to adopt the holding and for ellie that it is a higher standard but it has to be some certifiable verifiable evidence if there's not going to be an adjudication of comp incompetency legal incompetency then it would have to be that there is some type of testimonial or documentary evidence from medical professional that the person is incompetent the problem is that and as we know in the create even in the death penalty cases  that unless there are some of the they're fighting for the defendant in this case the individual there may be things that just don't get done the handle that and well that would be the second test that was an unseated in perry versus obama where as in this case if the person's interests are unprotected in looking at whether a gargle of these case right in looking at whether the guardian ad litem which changed the outcome of the case here we have medical evidence showing that this individual received significant medical care but we're not talking about this case some in this case may be easy but we're talking about well those determination has been made it's adopting what the ninth circuit has that's united states versus thirty point six four acres of land whether the appointment of a guardian ad litem and would affect the outcome or protect the interests of the shoes a medical provider from the oh i sent her in the prison i don't think the court needs a test i think that what is in place now is just fine the court does an initial nine hundred fifteen review to determine whether there is merit to a complaint the court at any moment throughout the pendency of the litigation can sue a spon to a seek to appoint counsel for an individual who displays the type of behavior that demonstrates an inability to take care of his own business in this case judge robinson did exactly what she was supposed to do she exercised her discretion when she received the three sentence letter from mr hartman's medical provider she went back and as she said thoroughly reviewed all of his pleadings to determine whether he had competently represented himself i think contrary to representation by our friend emma this table there are no bizarre is not the type of bizarre familiar with i've messed them up then you're honest familiar with the type of pleadings i've only done this type of work for about five or six years so i've only seen perhaps two hundred or two hundred fifty claims come through and i have to pleadings rise head and shoulders above eighty percent of what i see he's he's literate his grammar is correct his punctuation is correct he appropriately cites legal authority his answers to not have responded to the specific questions but what the amount to is an objection to the iraq tours themselves in the legal process they amount to an objection that he's being subjected to a legal process without due process without equal if attached and it's a very cogent argument throughout that document so i think that judge roberts and did not abuse her discretion here and that's really the keystone for the courts litigant should have counsel it's indigent litigants where there's been some finding my medical professional that they're incompetent and that and and that's what the the taber on analysis is about that's where rule seventeen comes into play in my suggestion this morning is the system that is in place while the system the judge robinson followed she got this what for all he would call verifiable medical evidence of some  incompetence she didn't simply say it's only three sentences she doesn't say how long she's been treating him she doesn't say how he's a disorders affect him and affect his competence she took a look at that and said ok well let's see what he's actually filed let's look at the pleadings that have come into my core and determine whether he has demonstrated an ability to represent himself or whether his filings by their very nature demonstrate that he is not co argue stronger i think at that point there's still i don't think the judge can just take this piece of paper and accept it and and move on to the next step i think there has to be an examination of the record so you would she she exercised her discretion and looked at the record to see what the man actually filed to determine whether there was incompetence that affected his ability ably to represent himself and she determined after looking at that that he had ably represented himself at every turn he may not have won the motions he filed but i hope it doesn't reflect the me but i don't when all the motions i file mr hartman's pleading you have anything to say that you haven't said or you have a couple of things specific to mr hartman that i have not said before the first as related to perry v obama which counts of of the state has mentioned as an appropriate tests that would preclude mr scase because they're simply not like perry the obama the second point i'd like to make counsel for the state of delaware suggested that under delaware law there is some sort of per se rule that depression can never a ren someone incapacitated or incompetent so as to require a point of counsel under rule set rule seventeen that's simply not the case if you read the powers case the appellate court is looking at the facts below  individual was not so depressed and mentally ill that he cannot represent himself in that context it's by no means a per se rule and certainly does not foreclose mr hartman or mr hartman psychiatry's from say that his major depression is significant enough that he either needs counseling or will seventeen or under the discretionary taber inquiry that his capacity is compromising counsel would be appropriate  and there's no further analysis if the court had done that analysis explained for example it's not an affidavit it's not detail i don't know how long mr harmon has been treated by the psychiatrist that might have been enough but the simply nothing there and that makes mr hartman scase like the hamilton case where this court reversed similar situation it was a tapering case the individual had some indications of mental  doesn't have a guardian doesn't have any representation the court is without jurisdiction to go ahead and rule in that person's rule against that person and gardner so gonna look at the idea is it enough if the district court does a searching inquiry of the record and said it's not enough because even a very conscientious district court reviewing the record as thoroughly as possible can substitute for an adversary and that's why th guardian seventeen would also allow because it allows entry of other appropriate order a point of counsel that's left to the district court but what the district court cannot do is simply do nothing grant summary judgment and say you know i looked at the merits and district court in better make the determination of whether a guardian is more appropriate or counsel or both this court in the past has suggested that you know the guardian ad litum could also be attorney and wear both hats so that's certainly possible as