Metropolitan News-Enterprise


Wednesday, November 25, 2009


Page 4


C.A. Reverses Dismissal of Inmate’s Claim for Failure to Appear


By SHERRI M. OKAMOTO, Staff Writer


A San Diego Superior Court judge erred in dismissing an indigent inmate’s malpractice claim against the doctor who treated him during his incarceration without ensuring that the prisoner had received meaningful access to the court, the Fourth District Court of Appeal held yesterday.

In reviving Barry Jameson’s action against Dr. Tadesse Desta, Div. One explained that a trial court must find, based on facts in the record, that a prisoner has willfully failed to avail himself of the right to appear telephonically before dismissing an action on the basis of that inmate’s failure to appear.

Jameson’s complaint asserted eight causes of action, including breach of fiduciary duty, professional negligence, general negligence, failure to train, battery, violation of civil rights, intentional infliction of emotional distress, and violation of due process against Desta and officials of the California Department of Corrections and Rehabilitation.

He alleged that Desta, working on behalf of the department, negligently prescribed the drug Interferon to Jameson while he was incarcerated at the Richard J. Donovan Correctional Facility in San Diego and that the drug had caused him to suffer serious physical injuries, including irreversible damage to his eyesight.

Lack of Prosecution

Superior Court Judge William S. Cannon granted Desta’s motion to dismiss the case in 2005 for lack of prosecution, finding that Jameson had not diligently served the physician with a summons and complaint. However, Div. One reversed Cannon’s decision and remanded the matter for further proceedings.

On remand, Cannon issued an order authorizing Jameson to appear at court hearings by telephone but later dismissed the action without prejudice on the ground that Jameson failed to appear telephonically at a case management conference and at a subsequent hearing on an order to show cause.

Jameson argued that dismissal was improper because he “repeatedly notified the court” that prison officials were not providing him with the ability to communicate telephonically with the trial court, and Justice Cynthia Aaron agreed.

Writing for the appellate court, Aaron emphasized that prisoners have a statutory right to initiate civil actions and to have meaningful access to the courts to prosecute a bona fide claim.

She noted that Jameson had alerted the trial court in at least six different filings that prison personnel were not permitting him to make his telephonic appearances, but the record did not indicate that the trial court inquired into any of his complaints.

No ‘Willful’ Finding

Prior to dismissing the case, the trial court did not make any finding that Jameson’s failure to telephonically appear was willful, and Aaron reasoned that the record contained no facts that would support such a finding.

“Jameson tirelessly raised the issue of his lack of telephonic access to the court in letters to the trial court, in pleadings related to other issues in the case and, most significantly, in documents filed in anticipation of the March 10 case management conference and the April 18 order to show cause hearing,” Aaron said.

 As Jameson repeatedly requested that he be allowed to participate in court proceedings, objected to the trial court proceeding on an ex parte basis with only Desta’s counsel participating, and informed the trial court that intervention was necessary to ensure his right of meaningful access to the courts, the justice concluded the trial judge erred in dismissing the action based on Jameson’s failure to appear telephonically.

“While the trial court may exercise its discretion in determining the appropriate manner by which such access is provided, the trial court must make sure that whatever method is utilized actually provides meaningful access,” she said.

Logistical Arrangements

On remand, should the trial court elect to rely on telephonic hearings to provide such access, Aaron suggested that the trial court “may wish to communicate itself, telephonically and/or by letter, with prison personnel to determine what logistical arrangements are necessary to enable Jameson to appear telephonically, and make sure that both court staff and prison personnel make those arrangements.”

In the unpublished portion of the opinion, Aaron, joined by Justices Gilbert Nares and Joan Irion, rejected Jameson’s argument that the trial court had erred in failing to enter a default judgment against Desta, setting aside a clerk’s default, granting Desta leave to file a verified answer to Jameson’s complaint, or declining to grant Jameson’s request to recover $1,500 for paralegal fees as a cost on appeal stemming from his first appeal.

Aaron added that Jameson’s claim the trial judge had erred in failing to disqualify himself was not cognizable on appeal.

The case is Jameson v. Desta, 09 S.O.S. 6719.


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