                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            MAR 14 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PUNAOFO TSUGITO TILEI,                           No. 13-16298

              Plaintiff - Appellant,             D.C. No. 1:10-cv-00069-LJO-SKO

 v.
                                                 MEMORANDUM*
W. J. MCGUINNESS, M.D.; et al.,

              Defendants - Appellees.


                   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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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
(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
                                            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”).
                                            4
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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