Cataldo v. Madox et al

Filing 26

ORDER granting Plaintiff's 13 Motion for and Appointing Pro Bono Counsel Pursuant to 28 U.S.C. § 1915(e)(1) AND S.D. Cal. Gen Order 596. Appointed Ronald W Noya for David John Cataldo. Signed by Magistrate Judge William V. Gallo on 6/26/2017. (All non-registered users served via U.S. Mail Service) (fth)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID J. CATALDO,

Case No.: 16-CV-2747-JAH-WVG
Plaintiff,

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ORDER GRANTING PLAINTIFF’S
MOTION FOR AND APPOINTING
PRO BONO COUNSEL PURSUANT
TO 28 U.S.C. § 1915(e)(1) AND S.D.
Cal. Gen Order 596

v.
SHERIFF MADOX,

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Defendant.

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[ECF No. 13]

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Before the Court is Plaintiff David Cataldo’s motion for appointment of counsel.
(ECF No. 13.) For the reasons set forth below, Plaintiff’s motion is GRANTED.
I. INTRODUCTION

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On April 11, 2017, Plaintiff filed a motion for appointment of counsel. (Id.) In the

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motion, Plaintiff claimed he had several medical issues that created the exceptional

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circumstances required for the appointment of counsel. (Id.) Finding that additional

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information was needed for the Court to make a ruling on the motion, the Court ordered

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Plaintiff to file a supplemental brief explaining how and to what extent his physical

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ailments limited him. (ECF No. 14.) The Court also requested for in camera review

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Plaintiff’s medical records or any other medical files that support Plaintiff’s claims. (Id.)

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On May 3, 2017, Plaintiff timely filed supplemental briefing, (ECF No. 20,) and on May
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24, 2017 timely filed supplemental medical records, (ECF No. 22).

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II. LEGAL STANDARD

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Generally, there is no constitutional right to counsel in a civil case. United States v.

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30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986.) The Court has discretion, however,

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under 28 U.S.C. § 1915(e) to appoint volunteer counsel for indigent civil litigants in

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exceptional circumstances. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); see also

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Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). While the Court

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may appoint volunteer counsel in exceptional cases, it has no power to make a mandatory

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appointment. Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 301-08 (1989).

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In determining whether exceptional circumstances exist, a court evaluates the

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plaintiff's likelihood of success on the merits and the ability of the plaintiff to articulate his

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or her claim pro se in light of the complexity of the legal issues involved. Palmer, 560 F.3d

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at 970; Agyeman, 390 F.3d at 1103. However, “[n]either of these factors is dispositive and

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instead must be viewed together.” Palmer, 560 F.3d at 970; see also Terrell v. Brewer, 935

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F.2d 1015, 1017 (9th Cir. 1991).

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III. DISCUSSION

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Plaintiff brought this action under 42 U.S.C. § 1983 claiming that a defendant

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identified only as Sheriff Madox, the medical staff at George F. Bailey Detention Facility,

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and a defendant identified only as Dr. Tran at the Vista Detention Facility violated the

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Eighth and Fourteenth Amendments for deliberate indifference to Plaintiff’s medical needs

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and failure to protect given Plaintiff’s existing medical condition. (ECF No. 1 at 3.)

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Plaintiff’s claims include allegations that the defendants failed to timely seek emergency

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medical care, failed to protect Plaintiff from attacks by other inmates given his medical

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condition, and the defendants confiscated Plaintiff’s necessary medical equipment. (Id. at

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2.)

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Plaintiff argues that exceptional circumstances exist here because Plaintiff is in a

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wheelchair, is missing a portion of his skull, is blind in his right eye and as a result of these

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ailments is very limited in his ability to litigate the matter because he cannot think properly.
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(ECF No. 13 at 1, ECF No. 20 at 1.) In support of these claims, Plaintiff lodged several

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medical documents. These documents reveal that Plaintiff has a “history of chronic brain

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injury” that was ultimately assessed as “[t]raumatic brain injury” and that it is not foreseen

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that “any neurological intervention” would benefit Plaintiff. (ECF No. 22 at 4.) As a result

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of the missing piece of the skull, Plaintiff should “wear a helmet whenever out of bed or in

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a situation where he could fall or be prone to having his skull defect exposed.” (Id.)

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a. Likelihood of Success

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At this point in the litigation, Plaintiff has simply filed a First Amended Complaint,

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a motion to proceed in forma pauperis, and the present motion for the appointment of

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counsel. As such, the Court is unable to make a determination that Plaintiff will likely

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succeed on the merits. Equally important, the Court is unable to determine that Plaintiff

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will likely not be successful on the merits. The Ninth Circuit, in a recent unpublished

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opinion, indicated that merely articulating a claim for relief is sufficient to satisfy this

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prong. See Tilei v. McGuinness, 642 Fed. Appx. 719, 722 (9th Cir. 2016) (when finding

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the district court abused its discretion in denying the plaintiff counsel, the Court stated,

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“[f]inally, Tilei’s complaint states a claim for relief, and therefore suggests that he may

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succeed on the merits.”) With this standard in mind, the Court finds that since Plaintiff has

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stated a claim for relief he may succeed on the merits. Accordingly, this prong favors the

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appointment of counsel.

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b. Ability to Articulate Claims

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Plaintiff has filed a limited number of documents in the case to date. However, these

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limited documents make it apparent that Plaintiff is incapable of articulating his claims.

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With the exception of the pre-printed complaint form, these documents are largely

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incomplete and require the Court to construe them for Plaintiff in order to make sense of

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them. Additionally, Plaintiff’s case has the potential to be legally and factually complex.

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Plaintiff’s claims of deliberate indifference to medical needs and failure to protect based

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on medical status will turn on standards of care, causation, and medical treatment issues

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that may require the testimony of expert witnesses, necessitating expert discovery, a task
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that is undoubtedly complex.

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Lastly, the Court should consider the characteristics of the Plaintiff himself in

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addition to the characteristics of the claim. See McElyea v. Babbitt, 833 F.2d 196, 199 n. 3

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(9th Cir. 1987) (per curiam); see also Tilei, 642 Fed. Appx. at 722 (when considering the

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articulation prong, “courts should consider not only the characteristics of the claim, but

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also the characteristics of the plaintiff.”). Consideration of Plaintiff’s characteristics further

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supports the appointment of counsel. Plaintiff’s medical documents demonstrate he suffers

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from a traumatic brain injury, requiring constant attention. This evidence alone is sufficient

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to support his argument that he is incapable of articulating his claims.

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For these reasons, the Court finds that Plaintiff does not have the ability to articulate

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his claims due to their complexity and his medical incapacity. Accordingly, this prong

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favors the appointment of counsel.

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IV. CONCLUSION

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For the foregoing reasons, the Court finds this is the rare case where exceptional

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circumstances exist to warrant the appointment of counsel at this early stage and Plaintiff’s

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motion is GRANTED. Pursuant to S.D. Cal. General Order 596, the Court appoints Ronald

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W. Noya, SBN 77603, 701 B Street, Suite 228, San Diego, California, 92101, as Pro Bono

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Counsel for Plaintiff.

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Pursuant to S.D. Cal. CivLR 83.3.f.2, Pro Bono Counsel must file, within twenty-

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one (21) days of this Order, a formal written Notice of Substitution of Attorney signed by

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both Plaintiff and Pro Bono Counsel. Such substitution will be considered approved by the

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Court upon its filing, and Pro Bono Counsel will thereafter be considered attorney of record

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for Plaintiff for all purposes during further proceedings before this Court, in this matter

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only, and at the Court’s specific request. See CivLR 83.3.f.1, 2.

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The Court further DIRECTS the Clerk of the Court to serve Mr. Noya with a copy
of this Order at the address listed above upon filing. See S.D. Cal. CivLR 83.3.f.2.
IT IS SO ORDERED.
Dated: June 26, 2017

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