Smith v. Ogbuehi

• Citation: 38 Cal.App.5th 453,251 Cal.Rptr.3d 185
• Decision Date: 06 August 2019
• Docket Number: F075882
• Court: California Court of Appeals
• Parties: Gregory SMITH, Plaintiff and Appellant, v. I. OGBUEHI et al., Defendants and Respondents.

38 Cal.App.5th 453

251 Cal.Rptr.3d 185

Gregory SMITH, Plaintiff and Appellant,

v.I. OGBUEHI et al., Defendants and Respondents.

F075882

Court of Appeal, Fifth District, California.

Filed August 6, 2019

Certified for Partial Publication.^*

Gregory Smith, in pro. per., for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Monica N. Anderson, Assistant Attorney General, Neah Huynh and Allison M. Low, Deputy Attorneys General, for Defendants and Respondents.

FRANSON, Acting P.J. Plaintiff Gregory Smith is an indigent, self-represented prison inmate pursuing medical malpractice claims against a doctor and a nurse practitioner employed by the Pleasant Valley State Prison (Pleasant Valley). He filed a motion for the appointment of counsel, arguing the trial court should consider (1) the factual complexity of the issues relating to pain medication, dosage and his spinal condition; (2) his limited ability to investigate the facts, obtain discovery and get expert witnesses; (3) the legal complexity of the case; and (4) his showing that, on their face, his claims had merit. The trial court noted the right of criminal defendants to appointed counsel, cited the statute governing the appointment of public defenders, but stated it was without authority to appoint an attorney for a plaintiff in a civil case, and denied the motion. Subsequently, the trial court granted defendants' motion for summary judgment because Smith, as he predicted, did not obtain a medical expert's declaration contradicting the opinion of defendants' expert that the care provided Smith met the applicable standard of care.

The California Constitution and Penal Code section 2601, subdivision (d) provide indigent prisoners with the right of meaningful access to the courts to prosecute civil actions. One of the discretionary measures available to protect the right of access to the courts is the appointment of counsel. Consequently, the trial court had the discretionary authority to appoint counsel. The court's statement that it was without the authority to appoint counsel did not recognize the existence and scope of its discretionary authority.

The exercise of a trial court's discretion is guided by a three-step inquiry established in published appellate decisions. ( Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1485–1487, 85 Cal.Rptr.3d 127 ( Apollo ); Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792, 39 Cal.Rptr.2d 47 ( Wantuch ).) First, the trial court determines whether the prisoner is indigent. Second, the court determines whether the lawsuit involves a bona fide threat to the inmate's personal or property interests. If both conditions are satisfied, the trial court must consider the measures available to protect appellant's right of meaningful access to the courts, including the appointment of counsel. Where the indigent prisoner's civil action is bona fide and his or her access to the court is being impeded, a trial court must provide a remedy; it may not choose to do nothing.

Here, the trial court's denial of the motion to appoint counsel was not based on an informed exercise of its discretion. Consequently, the appropriate remedy is to remand the matter to the trial court for an exercise of its discretionary authority within the framework of the three-step inquiry.

We publish a portion of this decision because it resolves issues not reached in Apollo or Wantuch. First, the discretionary appointment of an expert pursuant to Evidence Code section 730 is among the measures available to trial courts to ensure indigent prisoner litigants are afforded meaningful access to the courts. Second, trial courts are responsible for recognizing their discretionary authority to appoint counsel for indigent civil litigants who request the appointment of counsel, even when the indigent litigant does not cite cases such as Apollo and Wantuch and does not refer to the right of access to the courts as the basis for that discretionary authority. Third, an indigent civil litigant may argue on appeal that the right of meaningful access to the courts provides a basis for appointing counsel despite not raising that specific argument in the trial court.

We therefore reverse the judgment and remand for further proceedings.

FACTS

Parties

Smith was born in 1956. His present incarceration began in 2004 and he is serving a sentence of 39 years to life, with eligibility for parole. The present litigation arises from the medical care Smith received at Pleasant Valley, where he arrived in August 2011, after being transferred from the Richard J. Donovan Correctional Facility in San Diego County (Donovan). Smith remained at Pleasant Valley until December 2013, when he was transferred to Folsom State Prison (Folsom).

The defendants named in Smith's pleading were P. Brazelton, Warden of Pleasant Valley; Dr. U. Baniga; Nurse Practitioner I. Ogbuehi; J. Clark Kelso; Dr. A. Duenas; and L. Zamora. Only Dr. Baniga, Ogbuehi, and Warden Brazelton were served with Smith's amended complaint.

Smith's Medical Conditions

Prior to Smith's arrival at Pleasant Valley, he was injured in two separate cellmate assaults. After the first cellmate assault, medical staff at Donovan coordinated two surgeries on Smith's right thumb and wrist in 2008 and 2009. Donovan medical staff also prescribed gabapentin

for pain.

In June 2010, Smith experienced a sudden onset of right knee pain. Donovan medical staff identified a lateral meniscus tear

and preliminarily evaluated Smith for surgery.

In September 2010, the second cellmate assault occurred, injuring Smith's left shoulder. Donovan medical staff and Smith prioritized treatment of the injured shoulder over the treatment of Smith's knee. In September 2010, the first surgery on Smith's left shoulder was conducted. In February 2011, Donovan medical staff coordinated a second surgery on Smith's shoulder to remove the displaced anchor. Donovan medical staff also prescribed morphine

for pain.

While treating Smith's shoulder, a CT scan

revealed an old compression fracture of Smith's L3 vertebrae. Smith was given a back brace, but no significant treatment was provided for his back.

To summarize, while at Donovan, Smith experienced medical problems with his right hand, right knee, left shoulder, and his spine. The symptoms from these problems included pain. This lawsuit addresses the medical care Smith received at Pleasant Valley after leaving Donovan in August 2011. Details about that medical care are set forth in the unpublished portion of this opinion addressing defendants' motion for summary judgment.

PROCEEDINGS

Smith has represented himself throughout this proceeding, which has included exhausting administrative remedies, filing a claim under the Government Claims Act ( Gov. Code, § 810 et seq. ), and pursuing this lawsuit. The litigation began in October 2013 when Smith filed a civil complaint and an application for waiver of court fees. In April 2014, after various motions had been filed and some withdrawn, Smith filed an amended complaint asserting medical malpractice claims. His amended complaint is the operative pleading for purposes of this appeal.

The amended complaint sets forth headings for three causes of action, all of which included the description "(Negligent or Wrongful Act or Omission)." Additional descriptions of "(Defendant's owe Plaintiff a legal duty of care)"; "(Defendant's Breach of Duty)"; and "(Proximately Cause Pain and Suffering)" were included in Smith's headings for the first, second, and third causes of action, respectively.

In broad terms, Smith alleged defendants breached their legal duty to provide reasonable and competent medical care by failing to give necessary medication; prescribing inappropriate medication; delaying examination and treatment; and failing to provide access to a specialist that his particular condition required. He also alleged the "failure to summon immediate medical care ... is serious enough [to] amount to the wanton and unnecessary infliction of pain and suffering." In more specific allegations, Smith asserts his shoulder cannot be repaired due to delays in treatment; the morphine

he was taking for pain was inappropriately lowered and then withdrawn completely; the gabapentin

he was taking was inappropriately withdrawn; and Dr. Baniga refused his request to be removed from Ogbuehi's care and assigned another nurse practitioner. The pain being treated related to Smith's shoulder injury, a compression fracture of his L3 vertebrae, and a tear of the lateral meniscus in his right knee.

In June 2014, the three defendants served with the amended complaint filed their answer. Subsequently, Warden Brazelton was dismissed with prejudice pursuant to a written request for dismissal signed by Smith and defense counsel. Consequently, this lawsuit has been narrowed to the claims against Dr. Baniga and Ogbuehi.

Motion for Appointment of Counsel

In April 2015, Smith filed a motion for appointment of counsel. The motion asserted (1) Smith was unable to afford counsel; (2) the issues involved in the case were complex and would require medical expert testimony; (3) Smith had little or no access to drug manufacturers and their data, specialists of the spine, or the Food and Drug Administration; and (4) Smith had limited knowledge of the law. Smith's memorandum of points and authorities cited federal cases and discussed factors addressed in those opinions—namely, factual complexity, plaintiff's ability to investigate, plaintiff's ability to present his claim, legal complexity, and the merits of the case.

In May 2015, the trial court issued an order (1) stating it had received Smith's ex parte motion for appointment of counsel, (2) mentioning the right to appointed counsel in criminal cases and lack of authority to appoint counsel for a plaintiff in a civil proceeding, and (3) denying the request. The court's rationale is described in part I.B.2., post.

Motion for Summary Judgment

In December 2016, defendants filed a motion for summary...