Melissa Calabrese v. State of California

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MELISSA CALABRESE, Dorothy No. 22-55408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. /// /// /// /// 2 22-55408  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. 3 22-55408