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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAYNARD VALLERY, 12 Plaintiff, 13 v. 14 15 J. BROWN, et al., 16 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv00095 DMS(RBB) ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL [ECF NO. 65] 17 18 Plaintiff Raynard Vallery, a state prisoner proceeding pro se 19 and in forma pauperis, filed a Complaint on January 16, 2008, and a 20 First Amended Complaint on June 25, 2008, pursuant to 42 U.S.C.A. § 21 1983 [ECF Nos. 1, 5]. 22 Stratton filed a Motion to Dismiss and Strike Plaintiff’s First 23 Amended Complaint on November 19, 2008; at the time of the 24 Defendants’ Motion, Defendant Brown had not been served, and he 25 subsequently filed a separate Motion to Dismiss [ECF Nos. 15, 33- 26 35]. 27 be granted in part and denied in part, and the district court 28 adopted the recommendation [ECF Nos. 32, 45]. Defendants Allen, Bell, Bourland, Dee, and This Court recommended that the Motion to Dismiss and Strike 1 08cv00095 DMS(RBB) 1 On October 21, 2009, Vallery filed a Second Amended Complaint 2 against Defendants Dee, Bell, Bourland, Stratton, Brown, and 3 unknown mailroom employees at Calipatria State Prison 4 (“Calipatria”) [ECF No. 47].1 5 causes of action arising under the First, Fourth, and Eighth 6 Amendments as well as the Due Process Clause, the Equal Protection 7 Clause, and the Director’s Rule. 8 47 (citing Cal. Code Regs. tit. 15, § 3401(c)).) 9 There, Vallery purports to state (Second Am. Compl. 12-15, ECF No. Defendants Dee, Bell, Bourland, Stratton, and Brown moved to 10 dismiss Vallery’s equal protection and Director’s Rule allegations 11 in the Second Amended Complaint for failure to state a claim. 12 (Mot. Dismiss Pl.’s Second Am. Compl. 1-2, ECF No. 48.) 13 Director’s Rule assertions against Defendants Dee, Bell, Bourland, 14 Stratton, and Brown were dismissed with prejudice, but the equal 15 protection claims against all of these Defendants were dismissed 16 without prejudice. 17 No. 55; see Report & Recommendation 24, ECF No. 50.) 18 District Judge Dana M. Sabraw gave Plaintiff leave to file a third 19 amended complaint by October 1, 2010, but Vallery did not do so. 20 (See Order Adopting Report & Recommendation 2, ECF No. 55.) 21 October 15, 2010, Defendants Bell, Bourland, Brown, Dee, and 22 Stratton filed an Answer to the remaining claims alleged in the 23 Second Amended Complaint [ECF No. 56]. 24 The (Order Adopting Report & Recommendation 2, ECF United States On The Plaintiff filed this Motion for Appointment of Counsel on 25 April 1, 2011 [ECF No. 65]. In support of his request for the 26 appointment of counsel, Vallery asserts the following: (1) He is 27 28 1 The Court will cite to the Second Amended Complaint using the page numbers assigned by the Court’s electronic filing system. 2 08cv00095 DMS(RBB) 1 unable to afford an attorney; (2) Plaintiff’s imprisonment limits 2 his ability to litigate; (3) the issues in this case require 3 significant investigation and research; (4) Vallery has limited 4 access to the law library and knowledge of the law; (5) he needs 5 assistance with investigating current and former Calipatria 6 employees who are defendants, witnesses, or victims; (6) an 7 attorney would be able to hire investigators and expert witnesses; 8 (7) a trial will likely involve conflicting testimony, and counsel 9 would assist Vallery in presenting evidence and cross-examining 10 witnesses; (8) Plaintiff has had difficulty mailing confidential 11 legal mail from Calipatria and Centinela prisons as well as 12 maintaining possession of his legal materials in Centinela State 13 Prison (“Centinela”); (9) counsel would help protect Vallery’s 14 interests during his deposition; and (10) the Plaintiff has 15 attempted to secure counsel but was unsuccessful. 16 Appointment Counsel 2-4, ECF No. 65.) 17 (Mot. “The court may request an attorney to represent any person 18 unable to afford counsel.” 28 U.S.C.A. § 1915(e)(1) (West 2006). 19 But “it is well-established that there is generally no 20 constitutional right to counsel in civil cases.” 21 Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (citations omitted). 22 There is also no constitutional right to appointed counsel to 23 pursue a § 1983 claim. 24 Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th 25 Cir. 1981)); accord Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 26 1998). 27 appointments of counsel.” 28 490 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, 3 08cv00095 DMS(RBB) 1 States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 2 1995). 3 Nevertheless, district courts have discretion, pursuant to 28 4 U.S.C.A. § 1915(e)(1), to request attorney representation for 5 indigent civil litigants upon a showing of exceptional 6 circumstances. 7 1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221, 8 1236 (9th Cir. 1984)). 9 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 10 of the likelihood of the plaintiff’s success on the merits and an 11 evaluation of the plaintiff’s ability to articulate his claims ‘in 12 light of the complexity of the legal issues involved.’” 13 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 14 1986)). 15 viewed together before reaching a decision.’” 16 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting Wilborn, 789 F.2d at 17 1331). 18 A. 19 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 20 nonfrivolous claim that is likely to succeed on the merits. 21 Wilborn, 789 F.2d at 1331. 22 Plaintiff alleges numerous causes of action arising under the 23 Constitution. 24 In his Second Amended Complaint, Vallery is currently a prisoner at Centinela, but the 25 allegations in his Second Amended Complaint stem from events that 26 occurred while he was incarcerated at Calipatria State Prison. 27 (Second Am. Compl. 1, ECF No. 47.) 28 15, 2004, and again on 17, 2004, he was sexually harassed by 4 Vallery claims that on April 08cv00095 DMS(RBB) 1 Correctional Officer Brown while Brown’s superior, Correctional 2 Sergeant Dee, observed. 3 and appeals, the Plaintiff contends that Appeals Coordinator Bell, 4 Warden Bourland, and Correctional Lieutenant Stratton were notified 5 of prior instances of sexual misconduct by Brown; these three 6 Defendants were deliberately indifferent to the substantial risk 7 that Brown would repeat the misconduct against Plaintiff. 8 10-12, 14.) 9 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 10 11.) 11 pressure and depression as a result of Brown’s conduct and was 12 consequently placed on medications. 13 believes his equal protection rights were violated when Defendants 14 did not follow regulations when responding to his complaints, yet 15 they did adhere to the regulations when dealing with other 16 prisoners. 17 that Brown violated the Fourth Amendment when he searched Vallery 18 two times without probable cause and for Brown’s sexual 19 gratification. 20 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 21 First Amendment rights by preventing the delivery of his 22 correspondence to the FBI. 23 the Eighth Amendment because she was aware of Brown’s misconduct 24 and did nothing to prevent it, including failing to report it as 25 required by the Director’s Rule. 26 that Defendants Bourland, Stratton, Bell, and unnamed mailroom 27 employees, who were aware of prior complaints against Brown, 28 violated his Eighth Amendment rights by acting with deliberate (Id. at 14.) Defendant Dee violated (Id. at 13.) 5 Vallery contends 08cv00095 DMS(RBB) 1 indifference to the substantial risk that Brown would engage in 2 improper conduct. 3 also alleged to have violated the Director’s Rule 4 According to Plaintiff, Defendant Brown violated Plaintiff’s due 5 process rights by failing to comply with portions of the Director’s 6 Rule that require correctional officers to refrain from sexual 7 abuse and to treat prisoners respectfully. 8 Finally, Vallery submits that his equal protection rights were 9 violated. (Id. at 14.) Bell, Bourland, and Stratton are (Id. at 15.) (Id. at 12-13.) (Id. at 14-15.) 10 As discussed above, Plaintiff’s Director’s Rule allegations 11 against Defendants Dee, Bell, Bourland, Stratton, and Brown were 12 dismissed with prejudice. 13 2, ECF No. 55; see Report & Recommendation 24, ECF No. 50.) 14 Vallery’s equal protection contentions against these five 15 Defendants were dismissed without prejudice. 16 Report & Recommendation 2, Aug. 27, 2010, ECF No. 55; see Report & 17 Recommendation 24, Apr. 12, 2010, ECF No. 50.) 18 not file a third amended complaint. 19 allegations arising under the First, Fourth, and Eighth Amendments 20 remain. 21 (Order Adopting Report & Recommendation (Order Adopting The Plaintiff did Accordingly, only his “[A] prison inmate retains those first amendment rights that 22 are not inconsistent with his status as a prisoner or with the 23 legitimate penological objectives of the corrections system.” 24 v. Procunier, 417 U.S. 817, 822 (1974). 25 rights include the right to free speech and to petition the 26 government. 27 1995); see also Sandin v. Conner, 515 U.S. 472, 487 n.11 (1995). 28 Nevertheless, “the constitutional rights that prisoners possess are Pell Prisoners’ First Amendment Bradley v. Hall, 64 F.3d 1276, 1278-79 (9th Cir. 6 08cv00095 DMS(RBB) 1 more limited in scope than the constitutional rights held by 2 individuals in society at large.” 3 229 (2001). 4 access to a legitimate means to petition for redress of grievances 5 may violate the prisoner’s right to access to the courts. 6 Lewis v. Casey, 518 U.S. 342, 353-55 (1996); Vandelft v. Moses, 31 7 F.3d 794, 796 (9th Cir. 1994); Soranno’s Gasco, Inc. v. Morgan, 874 8 F.2d 1310, 1314 (9th Cir. 1989) (“The right of access to the courts 9 is subsumed under the first amendment right to petition the 10 11 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, 12 and its protections extends to prisoners. 13 860 F.2d 328, 332 (9th Cir. 1988); see Thompson v. Souza, 111 F.3d 14 694, 699 (9th Cir. 1977). 15 search is determined by reference to the prison context.” 16 Michenfelder, 860 F.2d at 332. 17 the particular intrusion, the manner in which it is conducted, the 18 justification for initiating it, and the place in which it is 19 conducted.” 20 legitimate expectations of bodily privacy from persons of the same 21 or opposite sex are extremely limited. 22 1521, 1524 (9th Cir. 1993); Grummett v. Rushen, 779 F.2d 491, 495- 23 96 (9th Cir. 1985); see Michenfelder, 860 F.2d 328. 24 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 25 the basic human needs, one of which is ‘reasonable safety.’” 26 Helling v. McKinney, 509 U.S. 25, 33 (1993) (quoting Deshaney v. 27 Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989)). 28 Therefore, under the Eighth Amendment, a plaintiff has a right to 7 08cv00095 DMS(RBB) 1 be protected from harm while in custody. Farmer v. Brennan, 511 2 U.S. 825, 833 (1994); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 3 2000); Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 4 1989). 5 offensive to human dignity.” 6 1197 (9th Cir 2000). 7 acted with deliberate indifference to a substantial risk of serious 8 harm to the prisoner’s safety. 9 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 10 889 F. Supp 1146, 1267-68 (N.D. Cal. 1995). 11 violation must be objectively “sufficiently serious.” 12 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). 13 Also, the prison official must subjectively “know of and disregard 14 an excessive risk to inmate health or safety.” 15 The purported Farmer, 511 Id. at 837. Although Plaintiff’s allegations may be sufficient to state a 16 claim for relief, there is insufficient information before the 17 Court to conclude that Vallery is likely to succeed on the merits. 18 See Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993). 19 B. 20 Plaintiff’s Ability To Proceed Without Counsel To be entitled to appointed counsel, Vallery must also show he 21 is unable to effectively litigate the case pro se in light of the 22 complexity of the issues involved. 23 Courts have required that “indigent plaintiffs make a reasonably 24 diligent effort to secure counsel as a prerequisite to the court’s 25 appointing counsel for them.” See Wilborn, 789 F.2d at 1331. Bailey, 835 F. Supp. at 552. 26 Here, Vallery states he has made efforts to secure counsel, 27 and he attaches to his Motion letters from two attorneys stating 28 that they cannot represent him. (Mot. Appointment Counsel 4-5, ECF 8 08cv00095 DMS(RBB) 1 No. 65.) 2 counsel prior to seeking an order appointing counsel. 3 further contends he is unable to afford an attorney and that he has 4 already been granted in forma pauperis status. 5 argument is not sufficient because indigence alone does not entitle 6 a plaintiff to appointed counsel. 7 Plaintiff has made a reasonably diligent effort to secure Vallery (Id. at 2.) This Plaintiff raises other grounds for the appointment of counsel. 8 He asserts that his imprisonment will limit his ability to 9 litigate. (Id. at 2.) He describes the issues involved in the 10 case as complex and requiring significant research. 11 also argues that he has limited access to the law library and 12 limited knowledge of the law. 13 attorney to assist him in coordinating the investigation of current 14 and former Calipatria employees who are defendants, witnesses, or 15 victims. 16 procedures and would be able to hire investigators and expert 17 witnesses. 18 help him present evidence and cross-examine witnesses at trial due 19 to the likelihood of conflicting testimony. 20 has experienced difficulty mailing confidential legal mail from 21 Calipatria and Centinela prisons as well as maintaining possession 22 of his legal materials while in Centinela. 23 Vallery explains that counsel would assist Plaintiff in protecting 24 his interests during his deposition. 25 facts, Vallery requests a court-appointed attorney. 26 (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 27 is limited, he has not demonstrated that he is being denied 28 “reasonable” access. See Lindquist v. Idaho State Bd. of Corrs., 9 08cv00095 DMS(RBB) 1 776 F.2d 851, 858 (9th Cir. 1985). “[T]he Constitution does not 2 guarantee a prisoner unlimited access to a law library. 3 officials of necessity must regulate the time, manner, and place in 4 which library facilities are used.” 5 Despite his purported frustrations in sending and maintaining his 6 legal mail, Vallery has effectively pursued his claims although he 7 is subjected to burdens experienced by many pro se plaintiffs. 8 Factual disputes and anticipated cross-examination of 9 witnesses do not indicate the presence of complex legal issues Prison Id. (citation omitted). 10 warranting a finding of exceptional circumstances. See Rand, 113 11 F.3d at 1525 (holding that while the appellant might have fared 12 better with counsel during discovery and in securing expert 13 testimony, this is not the test). 14 investigate Calipatria employees and to hire expert witnesses is 15 similarly insufficient. 16 additional facts during the litigation, and a pro se plaintiff is 17 typically not in the position to easily investigate the facts 18 needed; without more, counsel may not be appointed on this basis. 19 See Wilborn, 789 F.2d at 1131 (footnote omitted). 20 appointed lawyer is also not required for his or her knowledge of 21 court rules or to assist Vallery in depositions. 22 litigant certainly would be better served with the assistance of 23 counsel.” 24 1331 (“[A] pro se litigant will seldom be in a position to 25 investigate easily the facts necessary to support the case.”). 26 Plaintiff is only entitled to appointed counsel if he can show 27 “that because of the complexity of the claims he [is] unable to 28 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. 10 Vallery has 08cv00095 DMS(RBB) 1 not demonstrated anything in the record that makes this case 2 “exceptional” or the issues in it particularly complex. 3 Moreover, Plaintiff’s Second Amended Complaint is adequate in 4 form. 5 extensions of time to respond to various deadlines, oppose two 6 Motions to Dismiss, ask that the Court assist him in serving 7 Defendant Brown, request the appointment of counsel, and file two 8 discovery motions. 9 67, 69); see Plummer v. Grimes, 87 F.3d 1032, 1033 (8th Cir. 1996) 10 (finding the district court did not abuse its discretion in denying 11 plaintiff counsel, in part because plaintiff adequately filed a 12 complaint and other pre-trial materials). 13 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 14 counsel pursuant to 28 U.S.C.A. § 1915(e)(1) are absent. 15 Plaintiff has failed to demonstrate either a likelihood of success 16 on the merits or an inability to represent himself beyond the 17 ordinary burdens encountered by pro se prisoners, Vallery’s Motion 18 for Appointment of Counsel is DENIED without prejudice. 19 Because IT IS SO ORDERED. 20 21 DATE: June 23, 2011 22 23 cc: _____________________________ RUBEN B. BROOKS United States Magistrate Judge Judge Sabraw All Parties of Record 24 25 26 27 28 K:\COMMON\BROOKS\CASES\1983\PRISONER\VALLERY095\Order re Appointment Counsel.wpd 11 08cv00095 DMS(RBB)

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