This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Henry L. Woodruff,
Tammy Rosburg, et al.,
Filed September 18, 2001
Nicollet County District Court
File No. C200372
Henry L. Woodruff, 1111 Hwy. 73, Moose Lake, MN 55767 (pro se appellant)
Mike Hatch, Attorney General, David A. Rowley, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101 (for respondents)
Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Pro se appellant, committed to the Minnesota Sex Offender Program, challenges the district court’s dismissal of his civil-rights claim against respondents, who are eight program employees. Because the district court did not err in its application of the law, we affirm.
In November 1997, pro se appellant Henry Woodruff was committed to the Minnesota Sex Offender Program (SOP) as a sexual psychopathic personality and sexually dangerous person. In June 2000, program staff learned of a pornography “lending ring” operating between the SOP’s Moose Lake and Saint Peter facilities. At that time, Woodruff was a resident of the Saint Peter facility, which is located at the Minnesota Security Hospital. On June 20, program staff conducted a search of patients’ rooms at the Saint Peter facility.
When staff began to search Woodruff’s room, he left the room and refused to sign a consent form that would allow them to search it without him present. Staff informed Woodruff that if he did not stay to observe the search or sign the form, his room would be locked until they completed searching the rest of the unit, at which time an operational-team meeting would be held to determine the next course of action. Woodruff then signed the consent form but made the notation “signed under duress” below his signature. Woodruff’s room was searched and a computer, computer floppy disks, CD-ROMs, a CD player, and videotapes were taken from his room.
On July 12, 2000, Woodruff was called to meet with an operational team, which placed him on four days of “Level A” restrictions for two violations of the program’s media-guidelines policy; namely, possessing a pornographic videotape and having a password-protected file on his computer. Under Level A restrictions, a patient is “restricted to the unit but is allowed very limited use of the residential area.”
Woodruff did not file a grievance through the program’s grievance procedure. Instead, he commenced a pro se action under 42 U.S.C. § 1983 against respondents, who are all SOP staff members, claiming that they unreasonably searched and seized his property and denied him due process of law. He also requested appointed counsel. The district court denied his request for counsel and granted respondents’ motion to dismiss, concluding that Woodruff failed to state a constitutional claim or to exhaust his administrative remedies. This appeal follows.
D E C I S I O N
As the district court noted, it considered materials outside the pleadings in granting respondents’ motion to dismiss. The motion is therefore treated as one for summary judgment. See Minn. R. Civ. P. 12.02; Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). When reviewing a district court’s grant of summary judgment, the appellate court determines (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).
Woodruff contends that the district court erred in concluding that the search of his room and possessions did not violate the Fourth Amendment, arguing that his property was searched and seized without probable cause. The United States Supreme Court has held that
the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.
Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S. Ct. 3194, 3200 (1984). Similarly, the Minnesota Supreme Court has explained that
[s]earches in correctional institutions are permitted without search warrants or probable cause when necessary to maintain security. A person in custody has, of necessity, a diminished expectation of privacy in his cell.
State v. Pietraszewski, 283 N.W.2d 887, 891 (Minn. 1979) (citations omitted). In Pietraszewski, the court also noted that the Minnesota Security Hospital, where the Saint Peter SOP facility is located,
although not a correctional institution per se, contains persons convicted of crimes who are adjudged mentally ill, as well as persons committed as mentally ill and dangerous. The security risks are just as great there as in a correctional institution. In addition, residents have no reasonable expectation of privacy in the common areas of their cells. Thus, searches in the Minnesota Security Hospital may be conducted without a warrant or probable cause when necessary to ensure security.
Id. Here, SOP staff had received reports that sexually explicit materials were being exchanged among patients at the Minnesota Security Hospital. Patients are committed to the SOP as sexual psychopathic personalities and sexually dangerous persons. The former have “an utter lack of power to control [their] sexual conduct and, as a result, [are] dangerous to other persons,” the latter are “likely to engage in harmful sexual conduct.” Minn. Stat. § 253B.02, subds. 18b-c (2000). It was reasonable for SOP staff to conclude that the presence of sexually explicit material in the facility posed a security risk for staff and vulnerable patients and that a search for such material was, therefore, necessary.
Woodruff also contends that the district court erred in concluding that the SOP’s policies do not grant patients a protected right to be present during searches of their rooms and property and that, by searching his property without him present, SOP staff deprived him of that right without due process of law. In support of this argument, Woodruff cites language in a consent form entitled “Patient Waiver of Presence During Room Search,” which states “I have a right to be present during any search of my room and personal belongings.” The full text of the consent form reads as follows:
I __________ (print patient name), recognize that I have a right to be present during any search of my room and personal belongings. However, I chose not to be present during the search of my room and belongings on __________ (print date) and further agree to hold staff harmless for any damages that may occur as a result of this search. I further understand that if I choose not to sign this waiver, I am required to be present during the entire search of my room and personal belongings * * *.
Woodruff printed his name and date on the form and signed it, although he made the notation “signed under duress” under his signature. Nonetheless, it is clear from the record that Woodruff had an opportunity to be present during the search, that if he wanted to challenge the search of his room and possessions he could have had a hearing, and that he chose not to take advantage of these opportunities. The district court did not err in concluding that SOP staff did not deprive Woodruff of a protected right without due process of law when they searched his property without him present.
Woodruff argues that the district court erred in concluding that he failed to state a claim that he was denied due process during his July 12, 2000, disciplinary hearing before the operational team. Woodruff asserts that he was deprived of protected liberty interests (1) by being placed under disciplinary restrictions for four days and (2) because the disciplinary committee’s conclusion that he was in possession of contraband will jeopardize the possibility of his release.
The validity of a due-process claim depends on whether a plaintiff was deprived of a protected liberty or property interest. Schocker v. State Dep’t of Human Rights, 477 N.W.2d 767, 770 (Minn. App. 1991), review denied (Jan. 30, 1992). Woodruff was only restricted from access to certain privileges for four days. This was not an “atypical and significant hardship” in relation to the ordinary incidents of his life in the SOP. See Sandin v. Conner, 515 U.S. 472, 483, 115 S. Ct. 2293, 2299 (1995) (finding 30-day disciplinary segregation was not deprivation of prisoner’s liberty interest). Nor was Woodruff deprived of any liberty interest by having his punishment noted in his record. See id. at 487, 115 S. Ct. at 2302 (concluding that possibility that misconduct would alter parole board’s decision was to attenuated too implicate the due-process concerns). The district court did not, therefore, err in its application of law in concluding that Woodruff failed to state a due-process claim.
Woodruff also challenges the district court’s denial of his request for appointed counsel. In criminal proceedings involving felonies and gross misdemeanors, the district court is required to appoint counsel for a defendant who is not represented by counsel and is financially unable to afford counsel. Minn. R. Crim. P. 5.02 , subd. 1. There are a limited number of non-criminal proceedings in which the district court also is required to appoint counsel, but none of these is at issue here.
Although a pro se litigant has no federal constitutional or statutory right to have counsel appointed in civil cases, federal appellate courts have considered whether federal district courts abused their discretion in declining to appoint counsel for civil litigants. See, e.g., Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998); McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997). The United States Court of Appeals for the Eighth Circuit has identified several factors to guide a court when it evaluates whether to appoint counsel for an indigent civil litigant; these include the factual complexity of the case, the ability of the indigent to investigate the facts, the existence of conflicting testimony, and the ability of the indigent to present a claim. Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986). Even if we were to apply this federal standard, we would conclude that the district court did not abuse its discretion in denying Woodruff’s request for appointed counsel. The factual basis of Woodruff’s claim is not complex, and the facts did not require extensive discovery to develop; as respondents note, they do not challenge the facts alleged by Woodruff. In addition, Woodruff has not shown that any testimony was excluded. Further, he has demonstrated his familiarity with judicial procedure and the substance of the legal authorities at issue here.
The district court cited Woodruff’s failure to exhaust administrative remedies as an additional reason for dismissal, noting that Woodruff did not file a grievance under the SOP’s formal grievance procedure or show that procedure to be futile. The United States Supreme Court has held that a litigant is not required to exhaust administrative remedies before filing a civil rights action under section 1983 in state or federal court. Felder v. Casey, 487 U.S. 131, 146-47, 108 S. Ct. 2302, 2311 (1988). But because Woodruff failed to establish his constitutional claims, the district court’s conclusion that his failure to exhaust administrative remedies also required dismissal is harmless error.
 The SOP also has a facility in Moose Lake. In October 2000, Smith was transferred from Saint Peter to Moose Lake.