Apolinar Navarette, Jr., AKA Paul Medel Navarette v. Jiro J. Enomoto

536 F.2d 277

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 29, 1976
• Docket: 74-2212
• Status: Published

Opinions

OPINION

Before KOELSCH and HUFSTEDLER, Circuit Judges, and HILL,** District Judge.

KOELSCH, Circuit Judge:

Appellant Navarette, a California state prisoner, brought this civil rights action against state prison officials under 42 U.S.C. §§ 1983,1985 and 28 U.S.C. §§ 1341, 1343; his complaint set out nine purported claims. The district court granted summary judgment for appellees as to the first, second, and third and dismissed the fourth through ninth for failure to state a federal claim. We affirm in part and reverse in part.

The district court erred in its grant of summary judgment. As to claims one and two, Navarette’s allegations in substance were that appellees deliberately refused to mail certain of his letters and to send certain others by registered mail in violation of the federal constitution and the mail regulations then in effect.

The controlling standard, first enunciated by the Supreme Court in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), is that an action may be dismissed for failure to state a claim only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Although the amended complaint drafted by Navarette’s attorney is badly worded and is not entitled to application of the “less stringent” standards reserved for pro se pleadings (Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)) we nevertheless view the allegations as sufficient to state a claim for the violation of a first amendment right to free expression.

In Martinez v. Procunier, 354 F.Supp. 1092 (N.D.Cal.1973), a case involving the censorship of prisoners’ mail pursuant to state prison regulations, a three-judge district court enjoined enforcement of those regulations, holding “that prisoners’ right to correspond is a fundamental right protected by the First Amendment, and that restrictions on that right must be at least reasonably and necessarily related to a valid institutional interest . . . .” 354 F.Supp. at 1097. Reviewing that decision in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1973), the Supreme Court affirmed on the narrower basis that unjustified governmental interference with the intended communications violated the first amendment rights, not of the prisoners, but of the non-prisoner correspondents who were party to those intended communications; the Court specifically reserved the question to what extent “an individual’s right to free speech survives incarceration . . . .” 416 U.S. at 408, 94 S.Ct. at 1809.

Nevertheless, this court has indicated in at least two recent decisions that a prisoner does not shed his first amendment right to free expression upon entering the prison gates. See McKinney v. DeBord, 507 F.2d 501, 505 (9th Cir. 1974) (opin. of Choy, J.); Seattle-Tacoma Newspaper Guild, Local # 82 v. Parker, 480 F.2d 1062, 1065 (9th Cir. 1973). Relying on the language in these decisions and our essential agreement with the rationale of the three-judge court in Martinez, we think Navarette’s allegations, although inartfully worded, permit proof entitling him to relief.¹

However, the district court’s grant of summary judgment would have been appropriate if there were no genuine issue of any material fact or, viewing the evidence and the inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant were clearly entitled to prevail as a matter of law. Stansifer v. Chrysler Motors Corporation, 487 F.2d 59, 63 (9th Cir. 1973).

In that regard, appellees argue that summary judgment was proper on the ground that a reasonable and good faith belief of a state official that his or her conduct is lawful, even where in fact it is not, constitutes a complete defense to a § 1983 claim for damages.

True, the existence of a public officer’s “good faith” immunity from § 1983 liability has been recognized in a number of situations. See Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214, 43 U.S.L.W. 4293 (Feb. 25, 1975); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Pierson v. Ray, 386 U.S. 547 (1967); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). See also Williams v. Gould, 486 F.2d 547, 548 (9th Cir. 1973); Handverger v. Harvill, 479 F.2d 513, 516 (9th Cir. 1973); Wimberley v. Campoy, 446 F.2d 895, 896 (9th Cir. 1971); Notaras v. Ramon, 383 F.2d 403, 404 (9th Cir. 1967). But here appellees’ assertions that they acted in the good faith belief that they were complying with valid regulations are contradicted by Navarette’s affidavits. This raised an issue of fact and precluded summary judgment. See Wimberley, supra, 446 F.2d at 896.² Moreover, the district court may not assume that the defense of good faith is always available. In Williams v. Gould, 486 F.2d 547, 548 (9th Cir. 1973), we said that “[gjood faith is a defense to liability for damages in a suit under section 1983 — at least if, and to the extent that, it would be a defense ‘[ujnder the prevailing view in this country’ in common-law actions based on the parallel tort [citing Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)].” And in Wood v. Strickland, supra, the Supreme Court concluded that § 1983 should be construed to accord school board members a qualified good faith immunity from damages under that section where “common-law tradition” and “strong public-policy reasons” so dictate. 420 U.S. at 320, 95 S.Ct. at 1000. On remand, the district court should determine whether the defense of good faith is available in this action in respect of causes one and two.

The dismissal of claims four and five was error. The substance of those claims was that Navarette was removed as prison librarian and a law-student visitation program in which he participated was terminated solely to punish or hamper his legal activities. The termination or denial of prison privileges because of a prisoner’s legal activities on his own behalf or those of other inmates is an impermissible interference with his or her constitutional right of access to the courts. See Hooks v. Kelley, 463 F.2d 1210, 1211 (5th Cir. 1972); Christman v. Skinner, 468 F.2d 723, 726-727 (2d Cir. 1972). Hence the allegations concerning the removal of Navarette as librarian constituted a valid claim. Similarly, the termination of the law-student visitation program may well have had the effect of impermissibly burdening Navarette’s right of access to the courts. See Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971), affirming Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.1970); Procunier v. Martinez, supra, 416 U.S. at 419—422, 94 S.Ct. 1800; Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941).³

The district court also erred in granting summary judgment as to the third claim and in dismissing the sixth. The allegations in claim three are to the effect that the acts charged in claims one and two were committed negligently; and such was also the gravamen of the sixth with respect to the acts charged in claims four and five.

In Williams v. Field, 416 F.2d 483, 485 (9th Cir. 1969), cert. denied, 397 U.S. 1016, 90 S.Ct. 1252, 25 L.Ed.2d 431 (1970), we recognized that it was still an open question in this circuit whether a negligent act can give rise to § 1983 liability. Since then, we have twice noted the issue without deciding it. See Allison v. Wilson, 434 F.2d 646, 647 (9th Cir. 1970), cert. denied, 404 U.S. 863, 92 S.Ct. 43, 30 L.Ed.2d 107 (1971); Cockrum v. Whitney, 479 F.2d 84, 86 n. 1 (9th Cir. 1973).

Section 1983 creates a federal cause of action against “[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . .” The section places no narrow limitation on the nature or quality of the conduct which it makes actionable, but concerns itself entirely with the consequences of that conduct. Moreover, the Court indicated in Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961), that § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Reading the statute in the prescribed fashion, we believe that a deprivation of rights need not be purposeful to be actionable under § 1983. Cf. Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962) (in banc).⁴

Of course we do not imply that all tortious conduct engaged in by a public official acting under color of state law is subject to redress under § 1983. A § 1983 plaintiff must show that he has been deprived of a federally protected right by reason of that conduct. In the specific context involved here — the administration of state prison systems — federal courts have traditionally been loathe to intervene absent unusual circumstances,⁵ and hence the extent to which many federal rights held by ordinary citizens survive incarceration is as yet uncertain. Cf. Wolff v. McDonnell, 418 U.S. 539, 555-556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Nevertheless, here the prisoner’s rights which Navarette alleges to have been violated are fundamental and reasonably well-defined; his allegations that state officers negligently deprived him of those rights state a § 1983 cause of action.⁶

The district court did not err in dismissing claims seven, eight, and nine. In them, Navarette sought to predicate the liability of defendants Procunier, Stone, and Morris, not on a theory of personal liability, but rather on the doctrine of respondeat superior. This court has recognized that, in appropriate circumstances, the Civil Rights Act does contemplate the imposition of vicarious liability where such liability is authorized by state law. See Hesselgesser v. Reilly, 440 F.2d 901, 903 (9th Cir. 1971); 42 U.S.C. § 1988. See also Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974); Boettger v. Moore, 483 F.2d 86, 87 (9th Cir. 1973). But here the State of California specifically precludes the imposition of such liability by statute. See Cal.Gov.Code § 820.8.⁷ Cf. the Supreme Court’s reading of Hesselgesser in Moor v. County of Alameda, 411 U.S. 693, 704 n. 17, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973).

All nine claims, so far as they purported to be predicated upon 42 U.S.C. § 1985, were properly dismissed. Navarette’s pleadings and affidavits failed sufficiently to allege the existence of the conspiracy contemplated by that section. See, e. g. Griffin v. Breckenridge, 403 U.S. 88, 102-103, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Sykes v. State of California, 497 F.2d 197, 200 (9th Cir. 1974); Granville v. Hunt, 411 F.2d 9, 11 (5th Cir. 1969).

Affirmed in part, reversed in part, and remanded.

1 . We express no opinion as to whether Navarette’s allegations of mail interference may state a claim for deprivation of his right to counsel or of access to the courts, see Ex parte Hull, 312 U.S. 546, 548-549, 61 S.Ct. 640, 85 L.Ed. 1034 (1941); Christman v. Skinner, 468 F.2d 723 (2d Cir. 1972); Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972); of his right to equal protection of the laws, see Smith v. Schneckloth, 414 F.2d 680, 681 (9th Cir. 1969); or of his fourth amendment rights, see United States v. Savage, 482 F.2d 1371, 1373 (9th Cir. 1973). Cf. Wolff v. McDonnell, 418 U.S. 539, 575-577, 94 S.Ct. 2693, 41 L.Ed.2d 935 (1974).

2 . The existence or lack of good faith — a state of mind which is therefore a subjective fact— generally is not the type of issue that lends itself to resolution, on the basis of affidavits, by summary judgment.

3 . We need not consider whether the alleged termination of the librarianship or the law-student visitation program might constitute a sufficiently significant invasion of Navarette’s liberty or property interests requiring the procedural safeguards outlined in Clutchette v. Procunier, 497 F.2d 809, 510 F.2d 613 (9th Cir. 1974).

4 . Other circuits are in essential agreement. See, e. g., Hoitt v. Vitek, 497 F.2d 598, 602 n. 4 (1st Cir. 1974); Howell v. Cataldi, 464 F.2d 272, 279 (3d Cir. 1972); McCray v. Maryland, 456 F.2d 1, 5-6 (4th Cir. 1972); Jenkins v. Averett, 424 F.2d 1228, 1232-1233 (4th Cir. 1970); Parker v. McKeithen, 488 F.2d 553, 556 (5th Cir. 1974), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974); Roberts v. Williams, 456 F.2d 819 (5th Cir. 1971), cert. denied, 404 U.S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110 (1971); Whirl v. Kern, 407 F.2d 781, 787-789 (5th Cir. 1969), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969); Fitzke v. Shappell, 468 F.2d 1072, 1077 (6th Cir. 1972); Puckett v. Cox, 456 F.2d 233, 234-235 (6th Cir. 1972); Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974); Byrd v. Brishke, 466 F.2d 6, 10-11 (7th Cir. 1972); Joseph v. Rowlen, 402 F.2d 367, 369-370 (7th Cir. 1968); Dewell v. Lawson, 489 F.2d 877, 881-882 (10th Cir. 1974); Daniels v. Van De Venter, 382 F.2d 29, 31 (10th Cir. 1967); Stringer v. Dilger, 313 F.2d 536, 540-541 (10th Cir. 1963); Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358, 365 (1971), reversed on other grounds, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). But cf. Brown v. United States, 486 F.2d 284, 287-288 (8th Cir. 1973).

5 . This circuit, like others, see, e. g., Parker v. McKeithen, 488 F.2d 553, 556 (5th Cir. 1974); Sostre v. McGinnis, 442 F.2d 178, 191 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972), has traditionally been reluctant to interfere in matters of state prison administration. See Williams v. Field, supra, 416 F.2d at 485. See, e. g., Mayfield v. Craven, 433 F.2d 873 (9th Cir. 1970); Smith v. Schneckloth, 414 F.2d 680 (9th Cir. 1969); Stiltner v. Rhay, 371 F.2d 420 (9th Cir. 1967), cert. denied, 387 U.S. 925, 87 S.Ct. 2038, 18 L.Ed.2d 977, 389 U.S. 964, 88 S.Ct. 352, 19 L.Ed.2d 378 (1967); Snow v. Gladden, 338 F.2d 999 (9th Cir. 1964); Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied, 373 U.S. 930, 83 S.Ct. 1551, 10 L.Ed.2d 701 (1963). But see Riley v. Rhay, 407 F.2d 496 (9th Cir. 1969).

Nevertheless, as noted in Parker v. McKeithen, supra, 488 F.2d at 556, “it can no longer be correctly asserted that the federal courts are unwilling in all situations to review the actions of state prison administrators to determine the existence of possible violations of constitutional rights.” In this context, see Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), at 555-556 (opinion of the Court) and 593-601 (Douglas, J., dissenting in part).

6 . Summary judgment as to the third cause of action was improper because, as in the case of counts one and two, viewing the evidence in the light most favorable to Navarette, we are unable to say appellees are entitled to prevail as a matter of law.

7 . The “Legislative Committee Comment — Senate,” which follows § 820.8, provides in part:

“This section nullifies the holdings of a few old cases that some public officers are vicariously liable for the torts of their subordinates.” (Emphasis in original.)