FILED
NOT FOR PUBLICATION MAY 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DARNELL OTIS McGARY, No. 10-35044
Plaintiff - Appellant, DC No. 3-05 cv 05376 RBL
v.
MEMORANDUM *
RONALD CULPEPPER, Administrative
Law Judge,
Defendant,
and
HENRY RICHARDS; VICTORIA
ROBERTS; KIM ACKER; MARK
McCLUNG; LESLIE SZIEBERT; BRIAN
JUDD,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted April 11, 2011
Seattle, Washington
Before: KLEINFELD, TASHIMA, and SILVERMAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
Plaintiff-Appellant Darnell Otis McGary appeals the district court’s
dismissal of his first amended complaint and its denial of his request to appoint
counsel. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse
in part, and remand to the district court for further proceedings.
Where, as here, Defendants file motions to dismiss after filing their answers,
the court construes the motion as one for judgment on the pleadings. MacDonald
v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006). A district court’s
decision to grant a motion for judgment on the pleadings pursuant to Fed. R. Civ.
P. 12(c) is reviewed de novo. Id. We liberally construe a pro se litigant’s
pleadings. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Lopez v.
Smith, 203 F.3d 1122, 1124, 1127-29 (9th Cir. 2000) (en banc).
1. McGary has failed to allege facts sufficient to show that Defendants
Kim Acker, Brian Judd, and Victoria Roberts were personally involved in the
alleged deprivation of McGary’s civil rights. Barren v. Harrington, 152 F.3d
1193, 1194 (9th Cir. 1998). He has had two opportunities to state claims against
these Defendants, but has failed to do so. See Lopez, 203 F.3d at 1127.
Accordingly, we affirm the district court’s dismissal of all claims against these
Defendants without leave to amend.
2
2. McGary fails to state a claim for deliberate indifference to his serious
medical needs. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (“A
showing of medical malpractice or negligence is insufficient to establish a
constitutional deprivation under the Eighth Amendment.”). He has also failed to
allege facts sufficient to support a claim for violation of his right to equal
protection of the law. Barren, 152 F.3d at 1194. McGary has had two
opportunities to state these claims, and has failed to do so each time. Further
amendment of these claims would be futile. We affirm the district court’s
dismissal of these claims.
3, Next, we conclude that McGary has stated three independent claims
for the violation of his right to due process. First, he has made specific allegations
to support his claim that his right to adequate treatment has been violated. See
Youngberg v. Romeo, 457 U.S. 307, 318, 322 (1982); Sharp v. Weston, 233 F.3d
1166, 1172 (9th Cir. 2000) (“[T]he Fourteenth Amendment Due Process Clause
requires states to provide civilly-committed persons with access to mental health
treatment that gives them a realistic opportunity to be cured and released.”).
Second, he has sufficiently alleged that his right to safe conditions of confinement
have been violated. Youngberg, 457 U.S. at 315-16 (holding that as a matter of
substantive due process, confined persons have a protected liberty interest in their
3
safety). Third, he has sufficiently alleged that his right to be free from
unreasonable restraint has been violated. Id. at 324 (holding that confined persons
have a protected liberty interest in “reasonably nonrestrictive confinement
conditions”).
4. Finally, McGary has adequately alleged that he has suffered
retaliation for the exercise of constitutionally-protected rights, in particular his
right to challenge the involuntary administration of antipsychotic drugs.
Washington v. Harper, 449 U.S. 210, 221-22 (1990) (holding that prisoners
possess a liberty interest in avoiding the involuntary administration of
antipsychotic drugs); see also Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.
2009) (explaining that retaliation against prisoners for their exercise of
constitutional rights “is itself a constitutional violation”); Pratt v. Rowland, 65
F.3d 802, 806 (9th Cir. 1995) (recognizing that transferring a prisoner to another
prison in retaliation for his exercise of constitutional rights is a prohibited
punishment).
5. Accordingly, we reverse the district court’s dismissal of the due
process and retaliation claims, and remand for further proceedings. In the
proceedings below, the district court declined to appoint counsel. Although we do
not conclude that the district court abused its discretion in so doing, we suggest
4
that the district court may wish to reconsider its decision. First, as stated above,
McGary has stated several claims which plausibly may have merit. It is difficult at
this point to judge McGary’s likelihood of success. Nevertheless, McGary’s
complaint makes serious allegations about his confinement which, if proven,
would merit relief. Second, this suit raises a number of important and complex
legal issues that may determine whether McGary will ever have a realistic
opportunity for release from his indefinite civil confinement. Although the
pleadings below indicate that McGary is capable of identifying his grievances, they
also demonstrate the difficulties he is likely to encounter in continuing without the
assistance of counsel. Given the issues presented and McGary’s apparent inability
to press his case beyond the initial pleading stage, this case may well present the
“exceptional circumstances” that warrant the appointment of counsel pursuant to
28 U.S.C. § 1915(e). See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
Therefore, without prejudging the matter, we urge the district court to reconsider
appointing pro bono counsel.
AFFIRMED in part, REVERSED in part, and REMANDED. No Costs.
Judge Kleinfeld dissents and would affirm entirely.
5