                                                                            FILED
                           NOT FOR PUBLICATION                               SEP 8 2017

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GREGORY K. ADAMSON,                              No. 12-17336

              Plaintiff-Appellant,               D.C. No. 2:05-cv-02286-JWS

 v.
                                                 MEMORANDUM*
MICHAEL HAYES, Tempe Police
Officer; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                    John W. Sedwick, District Judge, Presiding

                            Submitted August 9, 2017**

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

      Gregory Adamson appeals pro se from the district court’s judgment in his 42

U.S.C. § 1983 action alleging the use of excessive force by Tempe police officers.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and vacate and

remand in part.

      The district court granted summary judgment in part and later dismissed

Adamson’s remaining claims without prejudice after allowing the withdrawal of

his appointed counsel and the guardian ad litem who had been appointed to protect

Adamson’s interests after he was found incompetent.

      “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.” Fed. R. Civ. P.

17(c)(2). The district court thus has an obligation to protect an incompetent person

during litigation. Davis v. Walker, 745 F.3d 1303, 1311 (9th Cir. 2014).

      The district court did not abuse its discretion in allowing appointed counsel

to withdraw because the court conducted an adequate inquiry by holding a hearing

and ordering counsel to submit evidence, and the record showed that the attorney-

client relationship had broken down. See United States v. McKenna, 327 F.3d 830,

843 (9th Cir. 2003) (addressing motion for substitution of counsel in a criminal

case); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (holding that, generally,

a person has no right to counsel in a civil action). The district court also did not


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abuse its discretion in failing to appoint replacement counsel under 28 U.S.C.

§ 1915(e)(1) because the court had appointed counsel three previous times, and it

properly concluded that, in light of Adamson’s accusations against his attorneys, it

was unlikely that another competent attorney would agree to represent him. See

Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (setting forth standard

for appointment of counsel); Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir.

1984) (holding that district court did not abuse its discretion in refusing to appoint

replacement counsel).

      The district court did not abuse its discretion in granting the guardian ad

litem’s motion to withdraw after Adamson accused him of fraud and other

misconduct and asked that he be replaced. See Davis, 745 F.3d at 1310. The

district court also did not abuse its discretion in failing to appoint a new guardian

ad litem on the basis that, given Adamson’s treatment of the first guardian, it

would be impossible to find another person willing to serve as his guardian. See

id. The district court’s failure to appoint a new guardian ad litem did lead directly

to the dismissal of Adamson’s remaining claims. See id. (holding that the district

court may not use Rule 17(c) “as a vehicle for dismissing claims”). Unlike in

Davis, however, the district court already had exercised options for enabling

Adamson to pursue his civil rights claims by appointing both counsel and a


                                           3
guardian ad litem. Cf. id. at 1311 (explaining that rather than staying the

incompetent plaintiff’s claims, the district court could have looked for a suitable

guardian, put the plaintiff on a waiting list for guardian ad litem services, or

appointed counsel pursuant to § 1915(e)(1)). In light of the unlikelihood of finding

another person willing to serve as guardian ad litem, the district court did not

violate its obligation under Rule 17(c)(2) to protect Adamson’s interests in the

litigation, and did not abuse its discretion in failing to appoint a replacement

guardian.

      Adamson has not established any fraud on the district court. See Hendricks

& Lewis PLLC v. Clinton, 766 F.3d 991, 1000 (9th Cir. 2014) (holding that the

court of appeals has equitable power to vacate a judgment obtained by fraud);

United States v. Estate of Stonehill, 660 F.3d 415, 443-44 (9th Cir. 2011) (holding

that a fraud on the court must be established by clear and convincing evidence).

      We vacate the district court’s dismissal of Adamson’s remaining claims

without prejudice and remand with instructions for the court to administratively

close the case.1 The record supports the district court’s findings that, without

counsel or a guardian ad litem, the case could not proceed to trial, and any


      1
             The district court may wish expressly to require that any motion to
reopen the case shall be accompanied by a certificate of mental competency from a
licensed medical practitioner.
                                           4
resolution on the merits was unlikely. See Davis, 745 F.3d at 1310. Rather than

using Rule 17(c) as a “vehicle for dismissing claims,” the district court undertook

extensive efforts to enable Adamson to proceed despite his incompetency. Cf. id.

at 1310-11. Instead of dismissal without prejudice, however, we conclude that

administrative closure, pending Adamson’s restoration to competency, is a more

appropriate disposition. Cf. id. at 1311-12 (vacating stay order and administrative

closure when district court did not adequately protect plaintiff’s interests).

      All pending motions are denied.

      AFFIRMED in part and VACATED and REMANDED in part, with

instructions.




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