Punaofo Tsugito Tilei v. W. J. McGuinness, M.d.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PUNAOFO TSUGITO TILEI,
Plaintiff - Appellant,
v.
W. J. MCGUINNESS, M.D.; et al.,
Defendants - Appellees.
No. 13-16298
D.C. No. 1:10-cv-00069-LJO-SKO
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted February 10, 2016
San Francisco, California
Before: THOMAS, Chief Judge and SCHROEDER and NGUYEN, Circuit Judges.
Punaofo Tilei appeals the district court’s dismissal of his suit under Federal
Rule of Civil Procedure (“Rule”) 41(b) and the denial of his request for the
appointment of pro bono counsel. We have jurisdiction over the district court’s
final order of dismissal pursuant to 28 U.S.C. § 1291. We review for abuse of
FILED
MAR 14 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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discretion both the dismissal of a suit under Rule 41(b) as a sanction for failure to
comply with a court order, see Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.
1992), and the denial of a motion for the appointment of counsel pursuant to 18
U.S.C. § 1915(e), see Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). We
reverse and order the district court to appoint pro bono counsel.
I
On appeal from a Rule 41(b) dismissal for failure to amend a complaint, the
court reviews only the propriety of the dismissal. See Al-Torki v. Kaempen, 78
F.3d 1381, 1386 (9th Cir. 1996). However, the court must consider whether the
failure to amend the complaint was reasonable, which includes consideration of
whether “the original dismissal was erroneous.” See Yourish v. Cal. Amplifier, 191
F.3d 983, 992 (9th Cir. 1992). Here, Tilei’s original complaint stated a claim, and
the district court therefore erred by dismissing Tilei’s suit under Rule 41(b) for
failure to amend the complaint.
To establish an Eighth Amendment claim based on inadequate medical
treatment, a prisoner must show deliberate indifference to the prisoner’s serious
medical needs. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Tilei’s
alleged “chronic and substantial pain” resulting from spine degeneration
constituted a serious medical need. See Peralta v. Dillard, 744 F.3d 1076, 1086
2

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(9th Cir. 2014) (en banc). Tilei also adequately alleged deliberate indifference as
to each named defendant except Lisa Salinas.1 Tilei adequately alleged that prison
supervisors interfered with and delayed medical treatment by failing to forward
medical records to Tilei’s treating physicians. See Hamilton v. Brown, 630 F.3d
889, 897 (9th Cir. 2011) (concluding that “[d]eliberate indifference may include
. . . intentionally denying or delaying access to medical care” (internal citation
omitted)). As to Tilei’s treating prison physicians, Tilei adequately alleged that
prison physicians unreasonably ignored his specialists’ medical advice on the basis
of less-specialized medical knowledge. See Snow v. McDaniel, 681 F.3d 978, 986
(9th Cir. 2012) (concluding that reliance on “non-specialized” medical conclusions
may constitute deliberate indifference to a plaintiff’s medical needs), overruled on
other grounds by Peralta, 744 F.3d 1076; Wakefield v. Thompson, 177 F.3d 1160,
1165 (9th Cir. 1999) (“[A]llegations that a prison official has ignored the
instructions of a prisoner’s treating physician are sufficient to state a claim for
deliberate indifference.”). Thus, Tilei’s original complaint stated a claim for
deliberate indifference to serious medical needs, and the district court erred by
dismissing Tilei’s suit under Rule 41(b) for failure to amend the complaint.
1 The district court correctly concluded that Tilei failed to allege any facts
that suggested that Salinas, a non-medical personnel, had a subjective intent to
ignore Tilei’s serious medical needs.
3

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II
Counsel should only be appointed under 28 U.S.C. § 1915(e)(1) in
“exceptional circumstances,” which requires a consideration of the plaintiff’s
likelihood of success on the merits and the plaintiff’s ability to articulate the claims
pro se. Terrell, 935 F.2d at 1017. This case presents the rare “exceptional
circumstances” that warrant the appointment of pro bono counsel.
First, Tilei’s deliberate indifference claim is legally complex. Tilei’s claim
will turn on complex medical questions of competing treatment regimens and
causation, and likely require the testimony of expert witnesses. Second, Tilei is
incapable of articulating that claim. In assessing this prong, courts should consider
not only the characteristics of the claim, but also the characteristics of the plaintiff.
See McElyea v. Babbitt, 833 F.2d 196, 199 n.3 (9th Cir. 1987) (per curiam). Here,
Tilei introduced evidence that, due to his medical incapacity, he was unable to
draft motions and conduct legal research.2 Finally, Tilei’s complaint states a claim
for relief, and therefore suggests that he may succeed on the merits. See Alexander
v. Ramsey, 539 F.2d 25, 26 (9th Cir. 1976) (per curiam) (ordering district court to
2 We deny the motion for judicial notice, as Tilei’s court records do not
conclusively establish his ability to file an amended complaint. Flick v. Liberty
Mut. Fire Ins. Co., 205 F.3d 386, 392 n. 7 (9th Cir. 2000) (noting that it is “rarely
appropriate for an appellate court to take judicial notice of facts that were not
before the district court”).
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assess motion for appointment of counsel before ruling on motion to dismiss).
Taken together, these circumstances warrant the appointment of pro bono counsel
in this case.
III
Tilei’s original complaint stated a claim for deliberate indifference to a
serious medical need. Therefore, the district court erred by dismissing Tilei’s suit
as a sanction for Tilei’s failure to amend the complaint. Additionally, due to the
complexity of Tilei’s legal claims and Tilei’s physical incapacitation, the district
court erred by denying Tilei’s motion for the appointment of counsel.
REVERSED.
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