Vallery v. Brown et al

Filing 74

ORDER denying 65 Plaintiff's Motion for Appointment of Counsel without prejudice. Signed by Magistrate Judge Ruben B. Brooks on 6/23/11. (All non-registered users served via U.S. Mail Service)(lao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAYNARD VALLERY,

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Plaintiff,

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v.
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J. BROWN, et al.,

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Defendants.

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Civil No. 08cv00095 DMS(RBB)
ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL [ECF NO. 65]

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Plaintiff Raynard Vallery, a state prisoner proceeding pro se

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and in forma pauperis, filed a Complaint on January 16, 2008, and a

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First Amended Complaint on June 25, 2008, pursuant to 42 U.S.C.A. §

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1983 [ECF Nos. 1, 5].

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Stratton filed a Motion to Dismiss and Strike Plaintiff’s First

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Amended Complaint on November 19, 2008; at the time of the

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Defendants’ Motion, Defendant Brown had not been served, and he

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subsequently filed a separate Motion to Dismiss [ECF Nos. 15, 33-

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35].

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be granted in part and denied in part, and the district court

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adopted the recommendation [ECF Nos. 32, 45].

Defendants Allen, Bell, Bourland, Dee, and

This Court recommended that the Motion to Dismiss and Strike

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08cv00095 DMS(RBB)

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On October 21, 2009, Vallery filed a Second Amended Complaint

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against Defendants Dee, Bell, Bourland, Stratton, Brown, and

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unknown mailroom employees at Calipatria State Prison

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(“Calipatria”) [ECF No. 47].1

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causes of action arising under the First, Fourth, and Eighth

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Amendments as well as the Due Process Clause, the Equal Protection

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Clause, and the Director’s Rule.

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47 (citing Cal. Code Regs. tit. 15, § 3401(c)).)

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There, Vallery purports to state

(Second Am. Compl. 12-15, ECF No.

Defendants Dee, Bell, Bourland, Stratton, and Brown moved to

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dismiss Vallery’s equal protection and Director’s Rule allegations

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in the Second Amended Complaint for failure to state a claim.

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(Mot. Dismiss Pl.’s Second Am. Compl. 1-2, ECF No. 48.)

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Director’s Rule assertions against Defendants Dee, Bell, Bourland,

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Stratton, and Brown were dismissed with prejudice, but the equal

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protection claims against all of these Defendants were dismissed

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without prejudice.

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No. 55; see Report & Recommendation 24, ECF No. 50.)

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District Judge Dana M. Sabraw gave Plaintiff leave to file a third

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amended complaint by October 1, 2010, but Vallery did not do so.

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(See Order Adopting Report & Recommendation 2, ECF No. 55.)

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October 15, 2010, Defendants Bell, Bourland, Brown, Dee, and

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Stratton filed an Answer to the remaining claims alleged in the

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Second Amended Complaint [ECF No. 56].

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The

(Order Adopting Report & Recommendation 2, ECF
United States

On

The Plaintiff filed this Motion for Appointment of Counsel on

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April 1, 2011 [ECF No. 65].

In support of his request for the

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appointment of counsel, Vallery asserts the following:

(1) He is

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The Court will cite to the Second Amended Complaint using
the page numbers assigned by the Court’s electronic filing system.
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08cv00095 DMS(RBB)

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unable to afford an attorney; (2) Plaintiff’s imprisonment limits

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his ability to litigate; (3) the issues in this case require

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significant investigation and research; (4) Vallery has limited

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access to the law library and knowledge of the law; (5) he needs

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assistance with investigating current and former Calipatria

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employees who are defendants, witnesses, or victims; (6) an

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attorney would be able to hire investigators and expert witnesses;

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(7) a trial will likely involve conflicting testimony, and counsel

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would assist Vallery in presenting evidence and cross-examining

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witnesses; (8) Plaintiff has had difficulty mailing confidential

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legal mail from Calipatria and Centinela prisons as well as

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maintaining possession of his legal materials in Centinela State

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Prison (“Centinela”); (9) counsel would help protect Vallery’s

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interests during his deposition; and (10) the Plaintiff has

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attempted to secure counsel but was unsuccessful.

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Appointment Counsel 2-4, ECF No. 65.)

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(Mot.

“The court may request an attorney to represent any person

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unable to afford counsel.”

28 U.S.C.A. § 1915(e)(1) (West 2006).

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But “it is well-established that there is generally no

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constitutional right to counsel in civil cases.”

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Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (citations omitted).

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There is also no constitutional right to appointed counsel to

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pursue a § 1983 claim.

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Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th

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Cir. 1981)); accord Campbell v. Burt, 141 F.3d 927, 931 (9th Cir.

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1998).

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appointments of counsel.”

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490 U.S. 296, 310 (1989) (discussing § 1915(d)); see also United

United States v.

Rand v. Rowland, 113 F.3d 1520, 1525 (9th

Federal courts do not have the authority “to make coercive
Mallard v. United States Dist. Court,

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08cv00095 DMS(RBB)

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States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir.

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1995).

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Nevertheless, district courts have discretion, pursuant to 28

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U.S.C.A. § 1915(e)(1), to request attorney representation for

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indigent civil litigants upon a showing of exceptional

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circumstances.

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1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221,

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1236 (9th Cir. 1984)).

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of the plaintiff seeking assistance requires at least an evaluation

See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101,

“A finding of the exceptional circumstances

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of the likelihood of the plaintiff’s success on the merits and an

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evaluation of the plaintiff’s ability to articulate his claims ‘in

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light of the complexity of the legal issues involved.’”

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(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986)).

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viewed together before reaching a decision.’”

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935 F.2d 1015, 1017 (9th Cir. 1991) (quoting Wilborn, 789 F.2d at

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1331).

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A.

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Id.

“‘Neither of these factors is dispositive and both must be
Terrell v. Brewer,

Likelihood of Plaintiff’s Success on the Merits
To receive court-appointed counsel, Vallery must present a

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nonfrivolous claim that is likely to succeed on the merits.

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Wilborn, 789 F.2d at 1331.

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Plaintiff alleges numerous causes of action arising under the

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Constitution.

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In his Second Amended Complaint,

Vallery is currently a prisoner at Centinela, but the

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allegations in his Second Amended Complaint stem from events that

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occurred while he was incarcerated at Calipatria State Prison.

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(Second Am. Compl. 1, ECF No. 47.)

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15, 2004, and again on 17, 2004, he was sexually harassed by

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Vallery claims that on April

08cv00095 DMS(RBB)

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Correctional Officer Brown while Brown’s superior, Correctional

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Sergeant Dee, observed.

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and appeals, the Plaintiff contends that Appeals Coordinator Bell,

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Warden Bourland, and Correctional Lieutenant Stratton were notified

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of prior instances of sexual misconduct by Brown; these three

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Defendants were deliberately indifferent to the substantial risk

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that Brown would repeat the misconduct against Plaintiff.

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10-12, 14.)

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Bourland failed to have Brown removed from the prison.

(Id. at 6-8, 12-13.)

In inmate grievances

(Id. at

Vallery further explains that Defendants Stratton and
(Id. at

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11.)

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pressure and depression as a result of Brown’s conduct and was

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consequently placed on medications.

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believes his equal protection rights were violated when Defendants

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did not follow regulations when responding to his complaints, yet

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they did adhere to the regulations when dealing with other

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prisoners.

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that Brown violated the Fourth Amendment when he searched Vallery

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two times without probable cause and for Brown’s sexual

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gratification.

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Plaintiff claims to have suffered from elevated blood

(Id. at 14-15.)

(Id. at 9-10, 14.)

Vallery

As a result, the Plaintiff alleges

(Id. at 12.)

Vallery maintains that unnamed mailroom employees violated his

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First Amendment rights by preventing the delivery of his

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correspondence to the FBI.

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the Eighth Amendment because she was aware of Brown’s misconduct

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and did nothing to prevent it, including failing to report it as

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required by the Director’s Rule.

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that Defendants Bourland, Stratton, Bell, and unnamed mailroom

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employees, who were aware of prior complaints against Brown,

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violated his Eighth Amendment rights by acting with deliberate

(Id. at 14.)

Defendant Dee violated

(Id. at 13.)

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Vallery contends

08cv00095 DMS(RBB)

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indifference to the substantial risk that Brown would engage in

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improper conduct.

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also alleged to have violated the Director’s Rule

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According to Plaintiff, Defendant Brown violated Plaintiff’s due

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process rights by failing to comply with portions of the Director’s

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Rule that require correctional officers to refrain from sexual

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abuse and to treat prisoners respectfully.

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Finally, Vallery submits that his equal protection rights were

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violated.

(Id. at 14.)

Bell, Bourland, and Stratton are
(Id. at 15.)

(Id. at 12-13.)

(Id. at 14-15.)

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As discussed above, Plaintiff’s Director’s Rule allegations

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against Defendants Dee, Bell, Bourland, Stratton, and Brown were

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dismissed with prejudice.

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2, ECF No. 55; see Report & Recommendation 24, ECF No. 50.)

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Vallery’s equal protection contentions against these five

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Defendants were dismissed without prejudice.

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Report & Recommendation 2, Aug. 27, 2010, ECF No. 55; see Report &

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Recommendation 24, Apr. 12, 2010, ECF No. 50.)

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not file a third amended complaint.

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allegations arising under the First, Fourth, and Eighth Amendments

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remain.

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(Order Adopting Report & Recommendation

(Order Adopting

The Plaintiff did

Accordingly, only his

“[A] prison inmate retains those first amendment rights that

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are not inconsistent with his status as a prisoner or with the

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legitimate penological objectives of the corrections system.”

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v. Procunier, 417 U.S. 817, 822 (1974).

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rights include the right to free speech and to petition the

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government.

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1995); see also Sandin v. Conner, 515 U.S. 472, 487 n.11 (1995).

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Nevertheless, “the constitutional rights that prisoners possess are

Pell

Prisoners’ First Amendment

Bradley v. Hall, 64 F.3d 1276, 1278-79 (9th Cir.

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08cv00095 DMS(RBB)

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more limited in scope than the constitutional rights held by

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individuals in society at large.”

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229 (2001).

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access to a legitimate means to petition for redress of grievances

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may violate the prisoner’s right to access to the courts.

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Lewis v. Casey, 518 U.S. 342, 353-55 (1996); Vandelft v. Moses, 31

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F.3d 794, 796 (9th Cir. 1994); Soranno’s Gasco, Inc. v. Morgan, 874

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F.2d 1310, 1314 (9th Cir. 1989) (“The right of access to the courts

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is subsumed under the first amendment right to petition the

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Shaw v. Murphy, 532 U.S. 223,

Prison officials who deliberately deny an inmate

See

government for redress of grievances.”).
The Fourth Amendment protects against unreasonable searches,

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and its protections extends to prisoners.

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860 F.2d 328, 332 (9th Cir. 1988); see Thompson v. Souza, 111 F.3d

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694, 699 (9th Cir. 1977).

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search is determined by reference to the prison context.”

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Michenfelder, 860 F.2d at 332.

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the particular intrusion, the manner in which it is conducted, the

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justification for initiating it, and the place in which it is

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conducted.”

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legitimate expectations of bodily privacy from persons of the same

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or opposite sex are extremely limited.

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1521, 1524 (9th Cir. 1993); Grummett v. Rushen, 779 F.2d 491, 495-

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96 (9th Cir. 1985); see Michenfelder, 860 F.2d 328.

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Michenfelder v. Sumner,

“[T]he reasonableness of a particular

“Courts must consider the scope of

Bell v. Wolfish, 441 U.S. 520, 559 (1979).

Inmates’

Jordan v. Garner, 986 F.2d

The Eighth Amendment “requires that inmates be furnished with

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the basic human needs, one of which is ‘reasonable safety.’”

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Helling v. McKinney, 509 U.S. 25, 33 (1993) (quoting Deshaney v.

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Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989)).

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Therefore, under the Eighth Amendment, a plaintiff has a right to

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be protected from harm while in custody.

Farmer v. Brennan, 511

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U.S. 825, 833 (1994); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.

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2000); Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir.

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1989).

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offensive to human dignity.”

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1197 (9th Cir 2000).

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acted with deliberate indifference to a substantial risk of serious

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harm to the prisoner’s safety.

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v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995); Madrid v. Gomez,

A sexual assault on an inmate by a guard is “deeply
Schwenk v. Hartford, 204 F.3d 1187,

A plaintiff must show that the defendants

Farmer, 511 U.S. at 834; see Wallis

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889 F. Supp 1146, 1267-68 (N.D. Cal. 1995).

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violation must be objectively “sufficiently serious.”

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U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)).

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Also, the prison official must subjectively “know of and disregard

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an excessive risk to inmate health or safety.”

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The purported
Farmer, 511

Id. at 837.

Although Plaintiff’s allegations may be sufficient to state a

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claim for relief, there is insufficient information before the

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Court to conclude that Vallery is likely to succeed on the merits.

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See Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993).

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B.

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Plaintiff’s Ability To Proceed Without Counsel
To be entitled to appointed counsel, Vallery must also show he

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is unable to effectively litigate the case pro se in light of the

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complexity of the issues involved.

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Courts have required that “indigent plaintiffs make a reasonably

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diligent effort to secure counsel as a prerequisite to the court’s

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appointing counsel for them.”

See Wilborn, 789 F.2d at 1331.

Bailey, 835 F. Supp. at 552.

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Here, Vallery states he has made efforts to secure counsel,

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and he attaches to his Motion letters from two attorneys stating

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that they cannot represent him.

(Mot. Appointment Counsel 4-5, ECF

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08cv00095 DMS(RBB)

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No. 65.)

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counsel prior to seeking an order appointing counsel.

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further contends he is unable to afford an attorney and that he has

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already been granted in forma pauperis status.

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argument is not sufficient because indigence alone does not entitle

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a plaintiff to appointed counsel.

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Plaintiff has made a reasonably diligent effort to secure
Vallery

(Id. at 2.)

This

Plaintiff raises other grounds for the appointment of counsel.

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He asserts that his imprisonment will limit his ability to

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litigate.

(Id. at 2.)

He describes the issues involved in the

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case as complex and requiring significant research.

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also argues that he has limited access to the law library and

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limited knowledge of the law.

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attorney to assist him in coordinating the investigation of current

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and former Calipatria employees who are defendants, witnesses, or

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victims.

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procedures and would be able to hire investigators and expert

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witnesses.

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help him present evidence and cross-examine witnesses at trial due

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to the likelihood of conflicting testimony.

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has experienced difficulty mailing confidential legal mail from

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Calipatria and Centinela prisons as well as maintaining possession

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of his legal materials while in Centinela.

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Vallery explains that counsel would assist Plaintiff in protecting

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his interests during his deposition.

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facts, Vallery requests a court-appointed attorney.

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(Id.)

(Id.)

(Id.)

Vallery

He alleges a need for an

Further, a lawyer understands court rules and

(Id.)

Plaintiff complains that an attorney would also

(Id.)

Moreover, he

(Id. at 2-3.)

(Id. at 3.)

Finally,

Based on these

Although Plaintiff asserts that his access to legal materials

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is limited, he has not demonstrated that he is being denied

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“reasonable” access.

See Lindquist v. Idaho State Bd. of Corrs.,

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776 F.2d 851, 858 (9th Cir. 1985).

“[T]he Constitution does not

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guarantee a prisoner unlimited access to a law library.

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officials of necessity must regulate the time, manner, and place in

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which library facilities are used.”

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Despite his purported frustrations in sending and maintaining his

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legal mail, Vallery has effectively pursued his claims although he

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is subjected to burdens experienced by many pro se plaintiffs.

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Factual disputes and anticipated cross-examination of

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witnesses do not indicate the presence of complex legal issues

Prison

Id. (citation omitted).

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warranting a finding of exceptional circumstances.

See Rand, 113

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F.3d at 1525 (holding that while the appellant might have fared

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better with counsel during discovery and in securing expert

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testimony, this is not the test).

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investigate Calipatria employees and to hire expert witnesses is

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similarly insufficient.

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additional facts during the litigation, and a pro se plaintiff is

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typically not in the position to easily investigate the facts

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needed; without more, counsel may not be appointed on this basis.

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See Wilborn, 789 F.2d at 1131 (footnote omitted).

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appointed lawyer is also not required for his or her knowledge of

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court rules or to assist Vallery in depositions.

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litigant certainly would be better served with the assistance of

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counsel.”

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1331 (“[A] pro se litigant will seldom be in a position to

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investigate easily the facts necessary to support the case.”).

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Plaintiff is only entitled to appointed counsel if he can show

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“that because of the complexity of the claims he [is] unable to

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articulate his positions.”

Seeking an attorney to

Most actions require the development of

A court-

“[A]ny pro se

Rand, 113 F.3d at 1525; see also Wilborn, 789 F.2d at

Rand, 113 F.3d at 1525.

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Vallery has

08cv00095 DMS(RBB)

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not demonstrated anything in the record that makes this case

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“exceptional” or the issues in it particularly complex.

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Moreover, Plaintiff’s Second Amended Complaint is adequate in

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form.

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extensions of time to respond to various deadlines, oppose two

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Motions to Dismiss, ask that the Court assist him in serving

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Defendant Brown, request the appointment of counsel, and file two

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discovery motions.

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67, 69); see Plummer v. Grimes, 87 F.3d 1032, 1033 (8th Cir. 1996)

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(finding the district court did not abuse its discretion in denying

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plaintiff counsel, in part because plaintiff adequately filed a

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complaint and other pre-trial materials).

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Vallery was able to amend his Complaint twice, seek numerous

(ECF Nos. 1, 5, 17, 20, 22, 41, 44, 47, 49, 65,

The “exceptional circumstances” required for appointment of

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counsel pursuant to 28 U.S.C.A. § 1915(e)(1) are absent.

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Plaintiff has failed to demonstrate either a likelihood of success

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on the merits or an inability to represent himself beyond the

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ordinary burdens encountered by pro se prisoners, Vallery’s Motion

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for Appointment of Counsel is DENIED without prejudice.

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Because

IT IS SO ORDERED.

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DATE:

June 23, 2011

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cc:

_____________________________
RUBEN B. BROOKS
United States Magistrate Judge

Judge Sabraw
All Parties of Record

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K:\COMMON\BROOKS\CASES\1983\PRISONER\VALLERY095\Order re Appointment Counsel.wpd

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