Lopez v. Smith

Decision Date20 August 1998
Docket NumberNo. 97-16987,A-2R,97-16987
Citation160 F.3d 567
Parties98 Cal. Daily Op. Serv. 8298, 98 Daily Journal D.A.R. 11,516 Max LOPEZ, Jr., Plaintiff-Appellant, v. G.A. SMITH, Warden; Larry Loo, Chief Medical Officer; A. Acevedo, Chief Dental Officer; Patterson, Counselor 4; R. Keiner, Dentist; M.P. McClure, 4 Appeals Coordinator, Defendants-Appellees. . Submitted *
CourtU.S. Court of Appeals — Ninth Circuit

Max Lopez, Jr., Sacramento, California, in Pro per, for plaintiff-appellant.

Constance L. Picciano, Assistant Supervising Deputy Attorney General, Sacramento, California, for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California; Oliver W. Wanger, District Judge, Presiding. D.C. No. CV-95-05947-OWW/HGB.

Before: CHOY, SNEED and WIGGINS, Circuit Judges.

SNEED, Circuit Judge.

Max Lopez ("Lopez"), a California state prisoner, appeals pro se the district court's grant of summary judgment and dismissal of his claims under 42 U.S.C. § 1983. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 30, 1995, Lopez filed a Complaint in forma pauperis in the Eastern District of California, alleging that defendants Warden G.A. Smith, Chief Medical Officer Dr. Larry Loo, Chief Dental Officer Acevedo, Dr. Tierney, Counselor Patterson and Appeals Coordinator McClure (collectively "defendants") violated his civil rights protected by 42 U.S.C. § 1983. Lopez alleged that defendants: (1) knowingly placed him in a cell with a dangerous inmate who subsequently injured him; (2) provided inadequate medical care; (3) denied him outdoor exercise; (4) denied him a blanket and pillow in his cell; and (5) improperly placed him in the Security Housing Unit ("SHU").

On December 11, 1996, defendants filed a motion to dismiss and for summary judgment and Lopez filed a cross-motion for summary judgment. On May 27, 1997, the Magistrate Judge issued findings and recommendations in which he dismissed Lopez' claims that defendants knowingly housed him in a cell with a dangerous inmate and improperly placed him in the SHU, granted defendants' motion for summary judgment on the remaining claims and denied Lopez' cross motion for summary judgment. On September 18, 1997, the district court adopted the Magistrate Judge's findings and recommendations. Lopez filed a timely notice of appeal on October 6, 1997.

II. STANDARD OF REVIEW

This court reviews de novo both the district court's dismissal of an action pursuant to Federal Rule of Civil Procedure 12(b)(6) and grant of summary judgment. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995) (summary judgment); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per curiam) (dismissal).

III. DISCUSSION
A. Dismissal of Lopez' Claim of Deliberate Indifference to a Serious Risk to his Safety.

Lopez contends that the district court erred in dismissing his claim that prison officials violated the Eighth Amendment by placing him in a cell with a dangerous inmate who subsequently attacked Lopez and broke his jaw. The district court found that Lopez failed to name as defendants the individuals that caused his alleged injury, properly dismissed his claim but did not give Lopez an opportunity to amend the defects in his Complaint. Despite the district court's failure to give Lopez notice and an opportunity to amend, we affirm the dismissal.

1. The Prison Litigation Reform Act.

The Prison Litigation Reform Act ("PLRA"), Pub.L. No. 104-134, §§ 801-10, 110 Stat. 1321 (1996) codified at 28 U.S.C. § 1915(e)(2) (1996), states in pertinent part that: "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that .... the action or Congress sought to alter the landscape of prisoner litigation when it enacted the PLRA. Prior to the PLRA amendments, the statute governing a district court's authority to dismiss a pro se prisoner-litigant's complaint stated that a court "may dismiss the case" if it was "satisfied that the action is frivolous or malicious." 28 U.S.C. § 1915(d) (1994) (emphasis added). The PLRA amended § 1915 which now reads that a court "shall dismiss the case at any time" if a prisoner-litigant "fails to state a claim." 28 U.S.C. § 1915(e)(2)(B)(ii) (1996) (emphasis added); see also Mitchell, 112 F.3d at 1486.

appeal ... fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii) (emphasis added). Courts interpreting this provision have held that the phrase "shall dismiss" is mandatory, rather than permissive. See, e.g., Mitchell v. Farcass, 112 F.3d 1483, 1486 (11th Cir.1997). In other words, the PLRA requires that we dismiss an action or appeal any time a prisoner-litigant proceeding in forma pauperis "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

When Congress enacted the PLRA amendments it also sought to reduce docket pressure on federal courts caused by a burgeoning prisoner-litigant caseload. In fact, the sponsor of the statute, Senator Dole, stated that, under the new PLRA amendments, cases filed by prisoners proceeding in forma pauperis that failed to state a claim would be "immediately dismissed." 141 Cong. Rec. S14408-01 (1995) (statement of Senator Robert Dole). One way in which the PLRA sought to achieve this goal was by requiring courts to dismiss cases that failed to state a claim upon which relief could be granted. See 28 U.S.C. § 1915(e). With this provision, Congress apparently overrules Ninth Circuit law requiring courts to give a pro se prisoner-litigant an opportunity to amend a defective complaint if that litigant proceeds in forma pauperis. See Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir.1965).

2. Ninth Circuit Law Requiring Notice and Leave to Amend.

Ninth Circuit case law predating the PLRA amendments required a district court to provide a pro se litigant with certain procedural protections prior to dismissal of a complaint. See, e.g., Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir.1987). In Noll, 809 F.2d at 1448, this Court set forth five safeguards to protect a pro se litigant from an unfair dismissal of his complaint:

(1) process issued and served, (2) notice of any motion thereafter made by defendant or the court to dismiss the complaint and the grounds therefor, (3) an opportunity to at least submit a written memorandum in opposition to such motion, (4) in the event of dismissal, a statement of the grounds therefor, and (5) an opportunity to amend the complaint to overcome the deficiency unless it clearly appears from the complaint that the deficiency cannot be overcome by amendment.

In Noll, the district court dismissed a complaint of a pro se prisoner-litigant without providing either a statement of the grounds for dismissal or an opportunity to amend the complaint. Id. at 1447. This court reversed the dismissal and remanded the case to give Noll both an opportunity to amend and an explanation of the deficiencies in his complaint, reasoning that "the pro se litigant is far more prone to making errors in pleading than the person who benefits from counsel" and needs assistance in navigating through the process. Id. at 1448. The Noll rule is a creature of the judiciary and has only been adopted by a few other circuits. See, e.g., Tingler v. Marshall, 716 F.2d 1109 (6th Cir.1983), overruled by In re Prison Litig. Reform Act, 105 F.3d 1131, 1138 (6th Cir.1997) (Order).

The Sixth Circuit in In re Prison Litigation Reform Act concluded that the PLRA clearly overruled the "opportunity to amend or correct" rule for pro se prisoner-litigants filing in forma pauperis. The Sixth Circuit reasoned that under the PLRA, courts no longer have "discretion in permitting a plaintiff to amend a complaint to avoid a sua sponte dismissal. If a complaint falls within the requirements of § 1915(e)(2) when filed, then the district court must sua sponte dismiss the complaint." In re Prison Litig. Reform Act, 105 F.3d at 1138.

3. Rand v. Rowland Does not Apply.

Earlier this year, this Court decided, en banc, Rand v. Rowland, 154 F.3d 952 (9th Cir.1998). In Rand, we reaffirmed the judicially created rule that pro se prisoner-litigants are entitled to fair notice of the requirements of the summary judgment rule. Under this rubric, "district courts [a]re required to give the required notice in all cases" facing summary judgment regardless of the inmate's level of sophistication. Id. at 957 (quoting Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir.1988)).

The Rand Court noted that the rule was particular to summary judgment proceedings because summary judgment is such a "unique" and "drastic" measure fraught with "a myriad of challenges" that necessarily disadvantages individuals "[u]nschooled in the intricacies of civil procedure." 154 F.3d at 956-57. The Rand Court went on to emphasize that the rule was especially needed to protect prison inmates who surely do not have "an instinctual awareness that the purpose of a motion for summary judgment is to head off a full-scale trial by conducting a trial in miniature." Id. at 957 (quoting Jacobsen v. Filler, 790 F.2d 1362, 1364 n. 4 (9th Cir.1985)).

The Rand decision concerned the special circumstances surrounding the summary judgment rule. These procedural intricacies associated with summary judgment do not exist in a 12(b)(6) dismissal for a failure to state a claim. Instead, a 12(b)(6) dismissal rests solely on a litigant's failure to state a claim on which relief can be granted, by either failing to allege the elements of a claim or, as in this case, by failing to name a party that caused the litigant's injury. The same special litigation skills required for summary judgment proceedings are not necessary in 12(b)(6) dismissal proceedings. In light of the fact that a pro se litigant's pleadings...

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