Melissa Calabrese v. State of California ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELISSA CALABRESE, Dorothy No. 22-55408
Calabrese Guardian Ad Litem,
D.C. No. 5:19-cv-02492-CBM-SP
Plaintiff-Appellant,
v. MEMORANDUM*
STATE OF CALIFORNIA; COUNTY OF
ORANGE; PROVIDENCE ST. JOSEPH
HEALTH; MISSION HOSPITAL
REGIONAL MEDICAL CENTER; BRIAN
CHOI, M.D.; TONY CHOW, M.D.;
AFSHIN DOUST, Physician; MAHDIEH
FALLAHTAFTI, Doctor; LAWRENCE
TUCKER, M.D.; TARA YUAN, Physician,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Submitted February 14, 2023**
Before: FERNANDEZ, FRIEDLAND, and H.A. THOMAS, Circuit Judges.
*
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).
Melissa Calabrese, by and through her guardian ad litem Dorothy Calabrese,
appeals pro se from the district court’s order precluding Dorothy from proceeding
pro se with the action on Melissa’s behalf, and denying the appointment of
counsel. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
The district court did not err in denying Dorothy’s motion to proceed pro se
with the action on Melissa’s behalf because a guardian who is not an attorney or
represented by an attorney may not bring an action on behalf of a plaintiff who is
incompetent. See Johns v. County of San Diego, 114 F.3d 874, 876-77 (9th Cir.
1997).
The district court did not abuse its discretion in denying Dorothy’s motion
for appointment of counsel because Dorothy failed to demonstrate exceptional
circumstances. See Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (setting
forth standard of review and “exceptional circumstances” requirement for
appointment of counsel).
Dorothy’s motions for appointment of counsel (Docket Entry Nos. 2 and 10)
are denied.
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We treat Dorothy’s response to defendants’ notice of intent to unseal
(Docket Entry No. 9) as a motion to maintain the seal and grant the motion. The
Clerk will maintain the second amended complaint and the exhibits attached to the
second amended complaint under seal.
AFFIRMED.
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