The opinion of the court was delivered by: Ruben B.BROOKS United States Magistrate Judge
ORDER DENYING PLAINTIFF'S
MOTION FOR APPOINTMENT OF COUNSEL [ECF NO. 65]
Plaintiff Raynard Vallery, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint on January 16, 2008, and a First Amended Complaint on June 25, 2008, pursuant to 42 U.S.C.A. § 1983 [ECF Nos. 1, 5]. Defendants Allen, Bell, Bourland, Dee, and Stratton filed a Motion to Dismiss and Strike Plaintiff's First Amended Complaint on November 19, 2008; at the time of the Defendants' Motion, Defendant Brown had not been served, and he subsequently filed a separate Motion to Dismiss [ECF Nos. 15, 33-35]. This Court recommended that the Motion to Dismiss and Strike be granted in part and denied in part, and the district court adopted the recommendation [ECF Nos. 32, 45].
On October 21, 2009, Vallery filed a Second Amended Complaint against Defendants Dee, Bell, Bourland, Stratton, Brown, and unknown mailroom employees at Calipatria State Prison ("Calipatria") [ECF No. 47].*fn1 There, Vallery purports to state causes of action arising under the First, Fourth, and Eighth Amendments as well as the Due Process Clause, the Equal Protection Clause, and the Director's Rule. (Second Am. Compl. 12-15, ECF No. 47 (citing Cal. Code Regs. tit. 15, § 3401(c)).)
Defendants Dee, Bell, Bourland, Stratton, and Brown moved to dismiss Vallery's equal protection and Director's Rule allegations in the Second Amended Complaint for failure to state a claim. (Mot. Dismiss Pl.'s Second Am. Compl. 1-2, ECF No. 48.) The Director's Rule assertions against Defendants Dee, Bell, Bourland, Stratton, and Brown were dismissed with prejudice, but the equal protection claims against all of these Defendants were dismissed without prejudice. (Order Adopting Report & Recommendation 2, ECF No. 55; see Report & Recommendation 24, ECF No. 50.) United States District Judge Dana M. Sabraw gave Plaintiff leave to file a third amended complaint by October 1, 2010, but Vallery did not do so. (See Order Adopting Report & Recommendation 2, ECF No. 55.) On October 15, 2010, Defendants Bell, Bourland, Brown, Dee, and Stratton filed an Answer to the remaining claims alleged in the Second Amended Complaint [ECF No. 56].
The Plaintiff filed this Motion for Appointment of Counsel on April 1, 2011 [ECF No. 65]. In support of his request for the appointment of counsel, Vallery asserts the following: (1) He is unable to afford an attorney; (2) Plaintiff's imprisonment limits his ability to litigate; (3) the issues in this case require significant investigation and research; (4) Vallery has limited access to the law library and knowledge of the law; (5) he needs assistance with investigating current and former Calipatria employees who are defendants, witnesses, or victims; (6) an attorney would be able to hire investigators and expert witnesses; (7) a trial will likely involve conflicting testimony, and counsel would assist Vallery in presenting evidence and cross-examining witnesses; (8) Plaintiff has had difficulty mailing confidential legal mail from Calipatria and Centinela prisons as well as maintaining possession of his legal materials in Centinela State Prison ("Centinela"); (9) counsel would help protect Vallery's interests during his deposition; and (10) the Plaintiff has attempted to secure counsel but was unsuccessful. (Mot. Appointment Counsel 2-4, ECF No. 65.)
"The court may request an attorney to represent any person unable to afford counsel." 28 U.S.C.A. § 1915(e)(1) (West 2006). But "it is well-established that there is generally no constitutional right to counsel in civil cases." United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (citations omitted). There is also no constitutional right to appointed counsel to pursue a § 1983 claim. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); accord Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998). Federal courts do not have the authority "to make coercive appointments of counsel." Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989) (discussing § 1915(d)); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).
Nevertheless, district courts have discretion, pursuant to 28 U.S.C.A. § 1915(e)(1), to request attorney representation for indigent civil litigants upon a showing of exceptional circumstances. See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)). "A finding of the exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims 'in light of the complexity of the legal issues involved.'" Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). "'Neither of these factors is dispositive and both must be viewed together before reaching a decision.'" Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting Wilborn, 789 F.2d at 1331).
A. Likelihood of Plaintiff's Success on the Merits
To receive court-appointed counsel, Vallery must present a non-frivolous claim that is likely to succeed on the merits. Wilborn, 789 F.2d at 1331. In his Second Amended Complaint, Plaintiff alleges numerous causes of action arising under the Constitution.
Vallery is currently a prisoner at Centinela, but the allegations in his Second Amended Complaint stem from events that occurred while he was incarcerated at Calipatria State Prison. (Second Am. Compl. 1, ECF No. 47.) Vallery claims that on April 15, 2004, and again on 17, 2004, he was sexually harassed by Correctional Officer Brown while Brown's superior, Correctional Sergeant Dee, observed. (Id. at 6-8, 12-13.) In inmate grievances and appeals, the Plaintiff contends that Appeals Coordinator Bell, Warden Bourland, and Correctional Lieutenant Stratton were notified of prior instances of sexual misconduct by Brown; these three Defendants were deliberately indifferent to the substantial risk that Brown would repeat the misconduct against Plaintiff. (Id. at 10-12, 14.) Vallery further explains that Defendants Stratton and Bourland failed to have Brown removed from the prison. (Id. at 11.) Plaintiff claims to have suffered from elevated blood pressure and depression as a result of Brown's conduct and was consequently placed on medications. (Id. at 9-10, 14.) Vallery believes his equal protection rights were violated when Defendants did not follow regulations when responding to his complaints, yet they did adhere to the regulations when dealing with other prisoners. (Id. at 14-15.) As a result, the Plaintiff alleges that Brown violated the Fourth Amendment when he searched Vallery two times without probable cause and for Brown's sexual gratification. (Id. at 12.)
Vallery maintains that unnamed mailroom employees violated his First Amendment rights by preventing the delivery of his correspondence to the FBI. (Id. at 14.) Defendant Dee violated the Eighth Amendment because she was aware of Brown's misconduct and did nothing to prevent it, including failing to report it as required by the Director's Rule. (Id. at 13.) Vallery contends that Defendants Bourland, Stratton, Bell, and unnamed mailroom employees, who were aware of prior complaints against Brown, violated his Eighth Amendment rights by acting with deliberate indifference to the substantial risk that Brown would engage in improper conduct. (Id. at 14.) Bell, Bourland, and Stratton are also alleged to have violated the Director's Rule (Id. at 15.) According to Plaintiff, Defendant Brown violated Plaintiff's due process rights by failing to comply with portions of the Director's Rule that require correctional officers to refrain from sexual abuse and to treat prisoners respectfully. (Id. at 12-13.) Finally, Vallery submits that his equal protection rights were violated. (Id. at 14-15.)
As discussed above, Plaintiff's Director's Rule allegations against Defendants Dee, Bell, Bourland, Stratton, and Brown were dismissed with prejudice. (Order Adopting Report & Recommendation 2, ECF No. 55; see Report & Recommendation 24, ECF No. 50.) Vallery's equal protection contentions against these five Defendants were dismissed without prejudice. (Order Adopting Report & Recommendation 2, Aug. 27, 2010, ECF No. 55; see Report & Recommendation 24, Apr. 12, 2010, ECF No. 50.) The Plaintiff did not file a third amended complaint. Accordingly, only his allegations arising under the First, Fourth, and Eighth Amendments remain.
"[A] prison inmate retains those first amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). Prisoners' First Amendment rights include the right to free speech and to petition the government. Bradley v. Hall, 64 F.3d 1276, 1278-79 (9th Cir. 1995); see also Sandin v. Conner, 515 U.S. 472, 487 n.11 (1995). Nevertheless, "the constitutional rights that prisoners possess are more limited in scope than the constitutional rights held by individuals in society at large." Shaw v. Murphy, 532 U.S. 223, 229 (2001). Prison officials who deliberately deny an inmate access to a legitimate means to petition for redress of grievances may violate the prisoner's right to access to the courts. See Lewis v. Casey, 518 U.S. 342, 353-55 (1996); Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 1994); Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) ("The right of access to the courts is subsumed under the first amendment right to petition the government for redress of grievances.").
The Fourth Amendment protects against unreasonable searches, and its protections extends to prisoners. Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988); see Thompson v. Souza, 111 F.3d 694, 699 (9th Cir. 1977). "[T]he reasonableness of a particular search is determined by reference to the prison context." Michenfelder, 860 F.2d at 332. "Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559 (1979). Inmates' legitimate expectations of bodily privacy from persons of the same or opposite sex ...