Mike Hernandez v. George F. Denton

861 F.2d 1421, 1988 U.S. App. LEXIS 15669

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 23, 1988
• Docket: 86-2139, 87-1693 and 87-1694
• Status: Published

Opinions

SCHROEDER, Circuit Judge:

Appellant is a prisoner proceeding in for-ma pauperis in suits against prison officials at a number of prisons. He appeals the district court’s dismissal of three complaints as “frivolous” under 28 U.S.C. § 1915(d).

Appellant filed five pro se complaints alleging 42 U.S.C. § 1983 violations. The three complaints at issue in this appeal made the following allegations:

(1) Due process claims: Appellant alleges that he was placed in administrative segregation without written notice of the reasons, an opportunity to present evidence, an opportunity to be represented by counsel or written justification. In addition, appellant alleges that he was punished before receiving procedural due process in connection with other alleged rule violations;

(2) Eighth amendment claims other than rape claims: Appellant alleges that he had to sleep without a mattress for one night and without a blanket for an unspecified period of time. In addition, he alleges that he was not issued shoes for a month. Finally, appellant alleges physical and verbal abuse by prison officials;

(3) Rape claims: Appellant alleges that he was drugged and homosexually raped over 28 times by both inmates and prison officials at different institutions.

The district court referred all cases to a magistrate. The defendants had been served and had answered with respect to some but not all of the claims. The magistrate reviewed all claims and recommended that the district court dismiss them because the complaints, viewed together, indicated that appellant’s rape allegations were frivolous. The magistrate did not discuss the other claims. The district court followed the magistrate’s recommendation and dismissed pursuant to section 1915(d), which provides in pertinent part as follows:

The court may dismiss [a case proceeding in forma pauperis] if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

28 U.S.C. § 1915(d).

We have held that when a court dismisses a pro se complaint for failure to state a claim, the court should draft a few sentences explaining to the plaintiff the deficiencies and allow the plaintiff to amend. Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir.1987); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621 (9th Cir.1988). Because pro se litigants are unskilled in the law, they are prone to pleading errors. Without guidance, amendments by these litigants are made without an understanding of the deficiencies and are usually insufficient to cure deficient pleadings. Thus, when instructing pro se litigants to amend, district courts should briefly explain the complaints’ deficiencies so that the pro se plaintiffs will be better equipped to amend correctly. Noll, 809 F.2d at 1448. However, if it “is absolutely clear that the deficiencies of the complaint could not be cured by amendment,” the district court may dismiss. Franklin v. Murphy, 745 F.2d 1221, 1228 n. 9 (9th Cir.1984) (quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980)).

The procedural due process claims before the district court do not appear sufficient on the face of the complaints. We have ruled that, because prison safety is paramount, the procedural due process rights of prisoners are adequately protected by post-segregation decisions that administrative segregation is justified. Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). “[T]he due process clause does not require detailed written notice of charges, representation by counsel or counsel-substitute, an opportunity to present witnesses, or a written decision describing the reasons for placing the prisoner in administrative segregation.” Id. at 1100-01. In this case, appellant alleges that he was placed in administrative segregation without written notice, an opportunity to present evidence, an opportunity to be represented by counsel or written justification; appellant did receive post-deprivation hearings. Appellant’s claims fall squarely within Tous-saint’s holding. Therefore, he does not state a claim for violation of due process and no amendment could cure this deficiency. These claims should be dismissed.

The district court did not address the eighth amendment claims when it dismissed appellant’s complaint. The eighth amendment proscribes punishments incompatible with “evolving standards of decency” such as those “so totally without peno-logical justification that [they] result[] in the gratuitous infliction of suffering.” Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)). Appellant alleges that he had to sleep without a mattress for one night and without a blanket for an unspecified period of time, that he was not issued shoes for a month, and that he was physically and verbally abused by prison officials. “Prison officials have a duty to take reasonable steps to protect inmates from physical abuse.” Hoptowit, 682 F.2d at 1250. Physical and verbal abuse by officials indicates a deliberate indifference by prison officials to the safety needs of prisoners; therefore, appellant has stated an eighth amendment claim based on physical and verbal abuse because such abuse is “totally without penological justification.” Id. at 1237.

In addition, appellant may be able to state an eighth amendment claim based upon his allegation of deprivation of shoes for a month. Appellant has not alleged additional facts suggesting deliberate indifference or gratuitous infliction of suffering. He may, however, be able to state an eighth amendment claim with respect to the shoes if he amends his complaint. He should be permitted an opportunity to amend.

Appellant alleges that he slept without a blanket for an unspecified amount of time in a room across from broken windows. Appellant similarly has alleged no additional facts to indicate wanton infliction of pain or deliberate indifference, but appellant should similarly be allowed to amend this claim of deprivation.

Appellant’s allegation that he slept without a mattress for only one night is insufficient to state an eighth amendment violation and no amendment can alter that insufficiency. We affirm the district court’s dismissal of his claim for one night’s deprivation of a mattress.

The district court’s dismissal of appellant’s homosexual rape claims as “frivolous” under 28 U.S.C. § 1915(d) deserves more extensive discussion. For the purposes of determining whether a complaint is “frivolous,” the court presumes that the plaintiff’s allegations are true. Franklin, 745 F.2d at 1228. In addition, courts must construe allegations in pro se complaints liberally. Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 408 (9th Cir.1985).

If appellant’s rape claims are not “frivolous,” they may state claims for violation of both the eighth amendment and the fourteenth amendment. The eighth amendment dictates that prison officials may not be deliberately indifferent to the safety needs of inmates because such indifference may result in the unnecessary infliction of pain. Hoptowit, 682 F.2d at 1250. Appellant’s allegations of rape by prison guards, if construed liberally, indicate deliberate indifference. His allegations that the guards allowed his rape by other prisoners, construed liberally, also indicate deliberate indifference.

In addition, prisoner beatings by guards involving excessive force amounting to brutality are deprivations of a liberty interest in violation of due process. McRorie v. Shimoda, 795 F.2d 780, 785 (9th Cir.1986). Appellant’s allegations that he was raped by prison guards are no less troubling than the claims of beatings in McRorie. Therefore, they state a claim for violation of appellant’s substantive due process rights.

Finally, insufficient protection of a prisoner resulting in harm inflicted by other inmates may also violate the prisoner’s due process rights. Youngberg v. Romeo, 457 U.S. 307, 315-16, 102 S.Ct. 2452, 2457-58, 73 L.Ed.2d 28 (1982) (right to personal security protected by substantive due process and not extinguished by imprisonment); Escamilla v. City of Santa Ana, 796 F.2d 266, 269-70 (9th Cir.1986) (police have a duty to protect individuals if there is a “custodial relationship”). See Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.1980) (if prison officials know of pervasive risk of harm to prisoner and fail to protect that prisoner, prisoner has a viable section 1983 claim for violation of his constitutional rights), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981). In this case, appellant alleges that prison guards allowed other inmates to enter his cell and rape him. This allegation, if not frivolous, appears to state a claim for violation of appellant’s substantive due process rights.

The district court, however, deemed the claims frivolous. Disposition of the rape claims therefore requires some understanding of what is meant by “frivolous.” This court has examined the “frivolous” standard under section 1915(d) at length in Franklin v. Murphy, 745 F.2d 1221 (9th Cir.1984). We there adopted procedures proposed by the Federal Judicial Center in Recommended Procedures for Handling Prisoners’ Civil Rights Cases in the Federal Courts 57-58 (1980). That influential study, chaired by Judge Aldisert, recommended that if a prisoner meets the economic requirements for in forma pauperis status, the court should permit filing of the complaint under section 1915(a) and conduct a separate and independent inquiry into whether the action is “frivolous or malicious” under section 1915(d). It noted that the definition of “frivolous” may be influenced by Supreme Court cases discussing standards for dismissal of pro se complaints. Id. at 60-61. See, e.g., Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 reh’g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972). See also, Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 reh’g denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967) (discussing in a different context that a contention is not frivolous if “any of the legal points [are] arguable on their merits”).

With respect to legal sufficiency, the standard which has evolved is similar to that used to dismiss pro se complaints pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6). Franklin, 745 F.2d at 1228. Under 12(b)(6), a pro se complaint should be dismissed upon proper motion if it fails to state a claim upon which relief may be granted; thus, the court will dismiss if it is “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Haines, 404 U.S. at 521, 92 S.Ct. at 596 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). See Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir.1985).

The concept of frivolousness under section 1915(d), however, is not identical to the 12(b)(6) legal standard. Section 1915(d) permits the district court upon its own motion to weed out patently meritless claims at an early stage. However, care must be taken that section 1915(d) dismissal is not abused. See Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977) (prisoners have constitutional right of access to the courts). In considering section 1915(d) dismissals we thus look not only to the face of the complaint and the matters actually pleaded, but beyond to whether the claims have arguable substance in law or fact. As the Seventh Circuit has explained:

Rule 12(b)(6) permits the dismissal of a complaint for failure to state a claim upon which relief can be granted only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” (citations omitted). Under § 1915(d), in contrast, an in forma pauperis, pro se complaint can be dismissed sua sponte by the district court only if the petitioner cannot make any rational argument in law or fact which would entitle him or her to relief. Thus, the § 1915(d) test is less stringent than the Rule 12(b)(6) dismissal standard.

Williams v. Faulkner, 837 F.2d 304, 307 (7th Cir.1988). This is a more lenient standard because

[ n]either [the opportunity to further develop a claim], nor the sharply honed adversarial exchange involved in a Rule 12(b)(6) motion and opposition, are present when dismissal is sua sponte. Sua sponte dismissal is therefore a much more truncated process than is dismissal under Rule 12(b)(6). In giving effect to the intent with which Congress created the narrow exception in section 1915(d) for sua sponte dismissals, this difference must be taken into account.

Brandon v. Dist. of Columbia Bd. of Parole, 734 F.2d 56, 59 (D.C.Cir.1984), cert. denied, 469 U.S. 1127, 105 S.Ct. 811, 83 L.Ed.2d 804 (1985).

Thus, in Franklin we held that pro se prisoner complaints may be dismissed on the court’s own motion and prior to service, but only in limited circumstances; a district court may not dismiss an in forma pauperis complaint unless it has no “arguable substance in law [or] fact.” Franklin, 745 F.2d at 1227 (adopting standard in Watson v. Ault, 525 F.2d 886, 892 (5th Cir.1976)). See also Brandon, 734 F.2d at 59 (claim not viable); Crisafi v. Holland, 655 F.2d 1305, 1307-08 (D.C.Cir.1981) (no suggestion of supporting facts); Munz v. Parr, 758 F.2d 1254, 1258 (8th Cir.1985) (face of complaint shows “insuperable bar to relief”) (quoting Jackson Sawmill Co. v. United States, 580 F.2d 302, 306 (8th Cir.1978), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 35 (1979)).

We have recognized several possible bases which may justify a district court’s decision to dismiss an in forma pauperis complaint as having no arguable substance in law or fact. First, a court may dismiss as frivolous complaints that recite bare legal conclusions without any supporting facts. Franklin, 745 F.2d at 1228. See Tripati v. First Nat’l Bank & Trust, 821 F.2d 1868, 1370 (9th Cir.1987).

Second, a court may dismiss if the plaintiff’s claims are redundant or barred by res judicata because of previous litigation. Tripati, 821 F.2d at 1370. See Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir.), cert. denied, 423 U.S. 896, 96 S.Ct. 198, 46 L.Ed.2d 129 (1975). The district court may review its own records to determine whether, given previous court documents, the plaintiffs claims are redundant. Stiltner v. Rhay, 322 F.2d 314, 316 (9th Cir.1963), cert. denied, 376 U.S. 920, 84 S.Ct. 678, 11 L.Ed.2d 615 (1964).

Third, we have observed that “[a]n action may be dismissed under section 1915(d) where the defense is complete and obvious from the face of the pleadings or the court’s own records.” Franklin, 745 F.2d 1221, 1228.

Fourth, a court may dismiss a claim that is founded on “wholly fanciful” factual allegations. Id. It appears that the district court viewed the rape allegations in this case as fanciful because it did not believe so many similar episodes could have occurred. However, the district court could not properly assess the credibility of the plaintiff’s allegations, for we expressly rejected a standard of frivolousness which permitted the exercise of credibility discretion. Id.

In section 1915(d) dismissal of actions as “wholly fanciful,” we must accordingly look to a standard which prevents dismissal on grounds of a credibility assessment. Such a standard is found in the principles of judicial notice. Indeed, in authorizing dismissal of complaints founded on “wholly fanciful” factual allegations in Franklin, we relied upon quoted authority in two other circuits applying a judicial notice standard in assessing “fanciful” allegations:

A court may dismiss as frivolous complaints reciting bare legal conclusions with no suggestion of supporting facts, or postulating events and circumstances of a wholly fanciful kind. Similarly, “[a] complaint conflicting with facts of which the district court may take judicial notice might also properly be dismissed under section 1915(d).” Taylor v. Gibson, 529 F.2d 709, 717 (5th Cir.1976).

Id. (quoting Crisafi v. Holland, 655 F.2d 1305, 1307-08 (D.C.Cir.1981)). We therefore hold that a court may dismiss an action as frivolous if it is dependent upon allegations which conflict with facts of which a district court may take judicial notice.

The category of facts of which a district court may take judicial notice is a very narrow one; a judicially noticeable fact is one not subject to reasonable dispute because it is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201. See E. Cleary, McCormick’s Handbook of the Law of Evidence § 329-30 (2d ed. 1972). Such a narrow standard is required if courts are to make state officials accountable for meritorious prisoner claims of constitutional violations. See, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), reh’g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977). It is also necessary in order to avoid the waste caused by premature dismissals resulting in appeals and remand before consideration of defendant’s answer.

Admittedly, it is tempting to eliminate the meritless complaint at the pleading stage. Unfortunately, [however], this “is another instance of judicial haste which in the long run makes waste,” Dioguardi v. Durning, 139 F.2d 774, 775 (C.A. 2 1944) (Clark, J.) (citation omitted).

Estelle, 429 U.S. at 112-13, 97 S.Ct. at 295 (Stevens, J., dissenting). See Sherman v. Yakahi, 549 F.2d 1287, 1290 n. 5 (9th Cir.1977) (quoting Justice Stevens); Brandon, 734 F.2d at 62; Munz, 758 F.2d at 1258. Only if the facts alleged are impossible in light of any judicially noticeable fact may the district court find a complaint “wholly fanciful” and hence without arguable substance in law or fact.

The facts alleged here are not of that nature. Appellant alleged homosexual rapes committed between July, 1982 and December, 1984 by various prison officials and inmates at both Folsom Prison and the California Medical Facility at Vacaville. He alleges rape because of evidence of needle marks on his arms in the mornings, leading him to believe he had been drugged, feces on his undergarments and skin problems.

The magistrate and district court considered appellant’s homosexual rape claims frivolous because appellant’s five complaints alleged rapes over a period of 2 years, by various persons with similar modus operandi. It is hard to believe so many similar incidents occurred. But we cannot take judicial notice that none of them occurred. There is no indisputable source to tell us they did not happen. See Fed.R. Evid. 201. By determining the frivolousness of all of appellant’s complaints as a group, the district court relied upon an improper determination by the magistrate that appellant’s claims were not credible. This is not permissible. Franklin, 745 F.2d at 1228. The magistrate himself stated that “although each complaint, taken separately, is not necessarily frivolous, a different picture emerges from a reading of all five complaints together.”

If the district court had reviewed appellant’s complaints individually and had treated the factual allegations as presumptively truthful, it could not have dismissed them as frivolous because they are not “wholly fanciful”; appellant’s allegations of needle marks on his arms and other evidence of homosexual rape present claims with an arguable basis in fact.

We affirm the district court’s dismissal of appellant’s procedural due process claim and his eighth amendment claim based on deprivation of a mattress. However, we reverse the district court’s dismissal of the remaining eighth amendment claims because the district court never addressed them and never offered the appellant a chance to correct deficiencies through amendment. We reverse the district court’s decision on the rape claims as well, because the dismissal was based upon credibility determinations impermissible under section 1915(d).

REVERSED AND REMANDED.