United States District Court, S.D. California
DAVID J. CATALDO, Plaintiff,
SHERIFF MADOX, Defendant.
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 [ECF NO. 13]
William V. Gallo United States Magistrate Judge.
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.
April 11, 2017, Plaintiff filed a motion for appointment of
counsel. (Id.) In the motion, Plaintiff claimed he
had several medical issues that created the exceptional
circumstances required for the appointment of counsel.
(Id.) Finding that additional information was needed
for the Court to make a ruling on the motion, the Court
ordered Plaintiff to file a supplemental brief explaining how
and to what extent his physical ailments limited him. (ECF
No. 14.) The Court also requested for in camera
review Plaintiff's medical records or any other medical
files that support Plaintiff's claims. (Id.) On
May 3, 2017, Plaintiff timely filed supplemental briefing,
(ECF No. 20, ) and on May 24, 2017 timely filed supplemental
medical records, (ECF No. 22).
there is no constitutional right to counsel in a civil case.
United States v. 30.64 Acres of Land, 795 F.2d 796,
801 (9th Cir. 1986.) The Court has discretion, however, under
28 U.S.C. § 1915(e) to appoint volunteer counsel for
indigent civil litigants in exceptional circumstances.
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009);
see also Agyeman v. Corr. Corp. of America, 390 F.3d
1101, 1103 (9th Cir. 2004). While the Court may appoint
volunteer counsel in exceptional cases, it has no power to
make a mandatory appointment. Mallard v. U.S. Dist. Ct.
for S. Dist. of Iowa, 490 U.S. 296, 301-08 (1989).
determining whether exceptional circumstances exist, a court
evaluates the plaintiff's likelihood of success on the
merits and the ability of the plaintiff to articulate his or
her claim pro se in light of the complexity of the
legal issues involved. Palmer, 560 F.3d at 970;
Agyeman, 390 F.3d at 1103. However, “[n]either
of these factors is dispositive and instead must be viewed
together.” Palmer, 560 F.3d at 970; see
also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
brought this action under 42 U.S.C. § 1983 claiming that
a defendant identified only as Sheriff Madox, the medical
staff at George F. Bailey Detention Facility, and a defendant
identified only as Dr. Tran at the Vista Detention Facility
violated the Eighth and Fourteenth Amendments for deliberate
indifference to Plaintiff's medical needs and failure to
protect given Plaintiff's existing medical condition.
(ECF No. 1 at 3.) Plaintiff's claims include allegations
that the defendants failed to timely seek emergency medical
care, failed to protect Plaintiff from attacks by other
inmates given his medical condition, and the defendants
confiscated Plaintiff's necessary medical equipment.
(Id. at 2.)
argues that exceptional circumstances exist here because
Plaintiff is in a wheelchair, is missing a portion of his
skull, is blind in his right eye and as a result of these
ailments is very limited in his ability to litigate the
matter because he cannot think properly. (ECF No. 13 at 1,
ECF No. 20 at 1.) In support of these claims, Plaintiff
lodged several medical documents. These documents reveal that
Plaintiff has a “history of chronic brain injury”
that was ultimately assessed as “[t]raumatic brain
injury” and that it is not foreseen that “any
neurological intervention” would benefit Plaintiff.
(ECF No. 22 at 4.) As a result of the missing piece of the
skull, Plaintiff should “wear a helmet whenever out of
bed or in a situation where he could fall or be prone to
having his skull defect exposed.” (Id.)
Likelihood of Success
point in the litigation, Plaintiff has simply filed a First
Amended Complaint, a motion to proceed in forma
pauperis, and the present motion for the appointment of
counsel. As such, the Court is unable to make a determination
that Plaintiff will likely succeed on the merits. Equally
important, the Court is unable to determine that Plaintiff
will likely not be successful on the merits. The Ninth
Circuit, in a recent unpublished opinion, indicated that
merely articulating a claim for relief is sufficient to
satisfy this prong. See Tilei v. McGuinness, 642
Fed.Appx. 719, 722 (9th Cir. 2016) (when finding the district
court abused its discretion in denying the plaintiff counsel,
the Court stated, “[f]inally, Tilei's complaint
states a claim for relief, and therefore suggests that he may
succeed on the merits.”) With this standard in mind,
the Court finds that since Plaintiff has stated a claim for
relief he may succeed on the merits. Accordingly, this prong
favors the appointment of counsel.
Ability to Articulate Claims
has filed a limited number of documents in the case to date.
However, these limited documents make it apparent that
Plaintiff is incapable of articulating his claims. With the
exception of the pre-printed complaint form, these documents
are largely incomplete and require the Court to construe them
for Plaintiff in order to make sense of them. Additionally,
Plaintiff's case has the potential to be legally and
factually complex. Plaintiff's claims of deliberate
indifference to medical needs and failure to protect based on
medical status will turn on standards of care, ...