                                                                           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                            NOT FOR PUBLICATION                             MAY 03 2011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.




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      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


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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.




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