Salgado v. Williams et al

Filing 30

ORDER Denying as moot 17 Plaintiff's Motion to Produce Notice of Defendant's Documents; Denying 19 Plaintiff's Motion to Appoint Counsel; and Granting 21 Defendants' Motion for Leave to File Medical Records Under Seal. Signed by Magistrate Judge Peggy A. Leen on 5/27/2014. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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OCTAVIO SALGADO,

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Plaintiff,

ORDER

v.

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Case No. 2:13-cv-0220-JAD-PAL

(Mtn to Produce – Dkt. #17)
(Mtn to Appoint Counsel – Dkt. #19)
(Mtn for Leave to Seal – Dkt. #21)

BRIAN WILLIAMS, SR., et al.,
Defendants.

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This matter is before the court on Plaintiff Octavio Salgado’s Motion to Produce Notice

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of Defendants’ Documents (Dkt. #17) and Motion for Appointment of Counsel (Dkt. #19) and

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Defendants Cheryl Dressler’s, Dr. Francisco Sanchez’s, Dr. Romeo Aranas’, Benedicto A.

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Gutierrez’s, John Doglione’s, and Dr. Robert Bannister’s (“Defendants”) Motion for Leave to

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File Medical Records Under Seal (Dkt. #21). The court has considered the Motions. Plaintiff is

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a prisoner proceeding in this civil rights action pro se and in forma pauperis.

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I.

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The Motion represents that on October 18, 2013, the undersigned entered an Order (Dkt. #5)

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requiring the Attorney General’s Office to file a notice advising the court and Plaintiff for whom

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it was accepting service. Plaintiff contends he never received this notice, and he requests an

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order directing the Attorney General’s Office to provide him with the notice. After Plaintiff filed

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the Motion, Defendants filed a Notice of Compliance with Court Order (Dkt. #18). The Notice

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represents that the Attorney General filed the required Notices (Dkt. ##13, 14) on November 22,

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2013, and mailed a copy of them to Plaintiff at that time. Additionally, Defendants mailed the

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notices again on December 6, 2013, in response to Plaintiff’s Motion. See Letter to Plaintiff,

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attached as Exhibit 1 to Notice (Dkt. #18). Accordingly, Plaintiff’s Motion is denied as moot.

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Plaintiff’s Motion to Produce Notices (Dkt. #17).

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II.

Plaintiff’s Motion for Appointment of Counsel (Dkt. #19).

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Plaintiff has filed a form Motion requesting the court appoint counsel in a habeas case.

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This is a civil rights action, filed pursuant to 42 U.S.C. § 1983, and the federal habeas statutes

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cited in the Motion do not apply. Pursuant to 28 U.S.C. § 1915(e)(1), the court may appoint

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counsel to litigants proceeding in forma pauperis. That statute does not authorize courts to

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require counsel to represent such litigants but only to request such representation on a pro bono

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basis. See Mallard v. United States Dist. Ct., 490 U.S. 296, 304-05 (1989). The appointment of

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counsel pursuant to section 1915(e)(1) is limited to cases presenting exceptional circumstances.

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See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (per curiam). Appointment of

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counsel is not a matter of right. See Ivey v. Board of Regents, 673 F.2d 266 (9th Cir. 1982). In

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deciding whether to appoint counsel, the court should consider the likelihood of the success of

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the party’s claims on the merits, and the ability of the party to articulate claims pro se in light of

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the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331

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(9th Cir. 1986).

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Here, Plaintiff has not established that exceptional circumstances exist to justify the

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appointment of counsel. Furthermore, he has demonstrated sufficient ability to write and

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articulate his claims, and the facts alleged and legal issues raised are not especially complex. The

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court appreciates that it is difficult for pro se parties to litigate their claims and that almost every

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pro se party would benefit from representation by counsel. However, the court cannot require

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counsel to accept representation on a pro bono basis, and the number of attorneys available to

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accept appointment is very limited. Therefore, the request for appointment of counsel is denied.

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III.

Defendants’ Motion for Leave to File Medical Records Under Seal

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Defendants seek leave to file Plaintiff’s medical records under seal in support of their

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Motion for Summary Judgment (Dkt. #21). Plaintiff did not oppose the Motion. “Historically,

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courts have recognized a general right to inspect and copy public records and documents,

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including judicial records and documents.” See Kamakana v. City and County of Honolulu, 447

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F.3d 1172, 1178 (9th Cir. 2006) (internal quotation marks and citation omitted). Documents that

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have been traditionally kept secret, including grand jury transcripts and warrant materials in a
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pre-indictment investigation, come within an exception to the general right of public access. See

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id. Otherwise, “a strong presumption in favor of access is the starting point.” Id. (internal

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quotation marks and citation omitted).

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A motion to seal documents that are part of the judicial record, or filed in connection with

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a dispositive motion must meet the “compelling reasons” standard outlined in Kamakana. Thus,

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a party seeking to seal judicial records must show that “compelling reasons supported by specific

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factual findings . . . outweigh the general history of access and the public policies favoring

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disclosure.” Kamakana, 447 F.3d at 1178–79. The trial court must weigh relevant factors

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including: “the public interest in understanding the judicial process and whether disclosure of the

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material could result in improper use of the material for scandalous or libelous purposes or

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infringement upon trade secrets.” Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 679 n. 6 (9th

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Cir. 2010) (internal quotation marks and citation omitted). While the decision to grant or deny a

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motion to seal is within the trial court’s discretion, the trial court must articulate its reasoning in

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deciding a motion to seal. Pintos, 605 F.3d at 679.

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The court recognizes that the need to protect medical privacy has qualified as a

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“compelling reason” for sealing records in connection with a dispositive motion. See, e.g., Hill

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v. Baker, No. 3:11–cv–00717–LRH–WGC, 2014 WL 177413 (D.Nev. Jan. 13, 2014); San

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Ramon Regional Med. Ctr., Inc. v. Principal Life Ins. Co., No. C 10–02258 SBA, 2011 WL

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89931, at *n.1 (N.D.Cal. Jan. 10, 2011); Abbey v. Hawaii Employers Mut. Ins. Co., No. 09–

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000545 SOM/BMK, 2010 WL 4715793, at *1–2 (D.HI. Nov. 15, 2010); G. v. Hawaii, Nos. 08–

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00551 ACK–BMK, 09–00044 ACK–BMK, 2010 WL 2607483, at *1–2 (D.HI. June 25, 2010);

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Wilkins v. Ahern, No. C 08–1084 MMC (PR), 2010 WL 3755654 (N.D.Cal. Sept. 24, 2010);

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Lombardi v. Tri West Healthcare Alliance Corp., No. CV–08–02381–PHX–FJM, 2009 WL

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1212170, at *1 (D.Ariz. May 4, 2009).

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The court finds that the moving Defendants have established compelling reasons exist for

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the records to be filed under seal because balancing the need for the public’s access to Plaintiff’s

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health records against the need to maintain their confidentiality weighs in favor of sealing the

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records. Therefore, Defendants’ Motion is granted and the medical records proffered in support

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of the Motion for Summary Judgment (Dkt. #22) shall remain under seal.

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Based on the foregoing,

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IT IS ORDERED:

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1. Plaintiff’s Motion to Produce Notice of Defendant’s Documents (Dkt. #17) is
DENIED AS MOOT.

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2. Plaintiff’s Motion for Appointment of Counsel (Dkt. #19) is DENIED.

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3. Defendants’ Motion for Leave to File Medical Records Under Seal (Dkt. #21) is

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GRANTED. Plaintiff’s medical records submitted under seal (Dkt. #22) shall

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remain under seal.

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Dated this 27th day of May, 2014.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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