                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                             FILED
                            FOR THE NINTH CIRCUIT
                                                                             MAR 14 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
PUNAOFO TSUGITO TILEI,                            No. 13-15909

              Plaintiff - Appellant,              D.C. No. 4:12-cv-01688-PJH

 v.
                                                  MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,

              Defendant - Appellee.


                   Appeal from the United States District Court
                        for the Northern District of California
                 Phyllis J. Hamilton, Chief 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 28 U.S.C. § 1983

lawsuit 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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 1291. See Sanford v. Motts, 258 F.3d 1117, 1119 (9th Cir. 2001) (noting

that the dismissal of an action without prejudice, rather than a complaint, can serve

as a final order of dismissal). We review the district court’s dismissal of a

complaint de novo, Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011), and the

denial of a motion to appoint counsel pursuant to 28 U.S.C. § 1915(e)(1) for abuse

of discretion, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). We affirm in

part, reverse in part, and remand.

                                           I

      The district court correctly dismissed Tilei’s claims for damages under the

Eleventh Amendment, which bars suits against state agencies such as the

California Department of Corrections and Rehabilitation. See Lucas v. Dep’t of

Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam).

                                           II

      After the district court issued its final order of dismissal, we held that a

prisoner’s membership in the Brown v. Plata class does not bar claims for

injunctive relief where, like here, those claims relate solely to individual medical

care and treatment. See Pride v. Correa, 719 F.3d 1130, 1136–37 (9th Cir. 2013).

We therefore vacate the district court’s order dismissing Tilei’s claims for




                                          -2-
injunctive relief, and remand for reconsideration in light of Pride v. Correa, 719

F.3d 1130 (9th Cir. 2013).

                                           III

      The district court erred when it concluded that Tilei’s medical condition was

not relevant to the appointment of pro bono counsel. Counsel should only be

appointed under 28 U.S.C. § 1915(e)(1) in “exceptional circumstances.” Terrell,

935 F.2d at 1017. The district court was correct to consider both Tilei’s likelihood

of success on the merits and ability to articulate his claims pro se in light of the

complexity of the legal issues involved, but “neither of th[o]se factors is

dispositive.” See id. Rather, in determining whether exceptional circumstances

warrant the appointment of counsel, the district court should consider both the

“characteristics of the claim and the litigant.” See McElyea v. Babbitt, 833 F.2d

196, 199 n.3 (9th Cir. 1987) (per curiam) (emphasis added) (citation omitted).

Here, Tilei’s medical condition is a relevant characteristic that the district court




                                           -3-
should consider on remand as a part of the exceptional circumstance analysis. We

do not pre-judge the outcome of that inquiry.1

      Each side shall bear its own costs.

      AFFIRMED in part, VACATED in part.




      1
        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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