Balistreri v. Pacifica Police Dept.

• Decision Date: 16 March 1988
• Docket Number: No. 87-1969,87-1969
• Citation: 855 F.2d 1421
• Parties: Jena BALISTRERI, Plaintiff-Appellant, v. PACIFICA POLICE DEPARTMENT; Al Olsen, Police Chief, individually and as a police agent, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1421

855 F.2d 1421

57 USLW 2136

Jena BALISTRERI, Plaintiff-Appellant, v. PACIFICA POLICE DEPARTMENT; Al Olsen, Police Chief individually and as a police agent, Defendants-Appellees.

No. 87-1969.

United States Court of Appeals Ninth Circuit.

Submitted March 16, 1988. ^*

Decided Aug. 23, 1988.

Jena Balistreri, Pacifica, Cal., pro se.

Todd A. Roberts, Mark Bonino, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Redwood City, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before SCHROEDER and FLETCHER, Circuit Judges, and WATERS, ^** District Judge.

FLETCHER, Circuit Judge:

Jena Balistreri appeals, pro se, the district court's dismissal of her 42 U.S.C. Sec. 1983 complaint for failure to state a claim. The district court's decision is published at 656 F.Supp. 423. We reverse.

FACTS

Balistreri's complaint, prepared by an attorney, alleges the following facts.

On February 13, 1982, Balistreri was severely beaten by her husband. The Pacifica police officers who responded to her call for assistance removed the husband from the home, but refused to place him under arrest, and were "rude, insulting and unsympathetic" toward Mrs. Balistreri. One of the officers stated that Mrs. Balistreri deserved the beating. Although Balistreri was injured seriously enough to require treatment for injuries to her nose, mouth, eyes, teeth and abdomen, the officers did not offer Balistreri medical assistance.

Sometime after the incident, an unidentified Pacifica police officer pressured Balistreri into agreeing not to press charges against her husband.

Throughout 1982, Balistreri continually complained to the Pacifica police of instances of vandalism and of receiving hundreds of harassing phone calls. She named her husband, from whom she was now divorced, as the suspected culprit.

In November 1982, Balistreri obtained a restraining order which enjoined her former husband from "harassing, annoying or having any contact with her." ¹ Subsequent to the service of this order, Balistreri's former husband crashed his car into her garage, and Balistreri immediately called the police, who arrived at the scene but stated that they would not arrest the husband or investigate the incident. During the remainder of 1982, Balistreri reported additional acts of phone harassment and vandalism, but the police "received her complaints with ridicule," denied that any restraining order was on file, ignored her requests for protection and investigation, and on one occasion hung up on her when she called to report an instance of vandalism.

On March 27, 1983, a firebomb was thrown through the window of Balistreri's house, causing fire damage and emotional anguish to Balistreri. The police took 45 minutes to respond to Balistreri's "911" call. Although police asked Balistreri's husband a few questions, they determined he was not responsible for the act; Balistreri complained that the investigation was inadequate, to which the police responded that she should either move elsewhere or hire a private investigator.

Throughout 1983-85, Balistreri was continually subjected to telephone harassment and vandalism. Balistreri contacted Pacific Bell to "trace" the calls. Pacific Bell reported that some of these calls could be traced to the former husband's family, but the police refused to act on this information.

Balistreri, represented by counsel, filed a complaint alleging that these acts violated her constitutional rights and caused her to suffer physical injuries, a bleeding ulcer, and emotional distress. The complaint asserted that the defendant police officers had deprived Balistreri of due process and equal protection of the law, and violated her rights to be free of excessive use of force and unreasonable searches and seizures by police. The district court dismissed the complaint with prejudice. After the dismissal, Balistreri ceased to be represented by counsel and was granted leave to proceed in forma pauperis.

DISCUSSION

I. Defective Appellate Brief

Defendants argue that Balistreri has waived her appeal by failing to follow the formal requirements for brief-writing, as set forth in Fed.R.App.P. 28 and Ninth Circuit Rule 13. This argument is completely meritless.

The Fifth Circuit has squarely addressed and rejected the argument raised by defendants, that a pro se appeal should be dismissed for failure to comply with the formal requirements of appellate briefs under Fed.R.App.P. 28. Abdul-Alim Amin v. Universal Life Ins. Co., 706 F.2d 638, 640 n. 1 (5th Cir.1983); see also McCottrell v. E.E.O.C., 726 F.2d 350, 351 (7th Cir.1984) (pro se litigants held to lower standard of brief-writing than attorneys). Of the two cases cited by defendants in which issues were not considered due to appellate procedural defects, neither involved a pro se appellant.

This court recognizes that it has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements. Borzeka v. Heckler, 739 F.2d 444, 447 n. 2 (9th Cir.1984) (defective service of complaint by pro se litigant does not warrant dismissal); Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir.1984). Thus, for example, pro se pleadings are liberally construed, particularly where civil rights claims are involved. Christensen v. C.I.R., 786 F.2d 1382, 1384-85 (9th Cir.1986); Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985) (en banc). Defendants suggest no reason to treat pro se appellate briefs any less liberally than pro se pleadings.

Construing Balistreri's brief liberally, it is obvious that she is appealing the district court's dismissal of her Sec. 1983 complaint for failure to state a claim. Indeed, Balistreri's brief identifies and challenges the specific legal ground of the district court's ruling: "I wish to establish that there was a very special relationship between plaintiff and the police department ..." Appellant's Opening Brief at 3. The brief also refers to "discrimination" against Balistreri. Id, at 1. Defendants' contention that "Balistreri's opening brief fails to set forth any specific error by the district court" must be rejected. ²

II. Whether Balistreri has Stated a Sec. 1983 Claim

To sustain an action under Sec. 1983, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a constitutional right. Rinker v. Napa County, 831 F.2d 829, 831 (9th Cir.1987) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981)). We review de novo the district court's dismissal of Balistreri's complaint under Rule 12(b)(6). Shah v. County of Los Angeles, 797 F.2d 743, 745 (9th Cir.1986). A complaint should not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). On a motion to dismiss, the court accepts the facts alleged in the complaint as true. Shah, 797 F.2d at 745. Balistreri claims that defendants breached a duty to protect her imposed by the due process and equal protection clauses of the Fourteenth Amendment, and further claims a violation by defendants of her right to be free from excessive use of force and unlawful searches and seizures by police.

A. Due Process

Although mere negligence or lack of due care by state officials does not trigger the protections of the due process clause of the Fourteenth Amendment, and therefore does not state a claim under Sec. 1983, Daniels v. Williams, 474 U.S. 327, 330-32, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986), conduct which is less than intentional can be cognizable under Sec. 1983. E.g., Ketchum v. Alameda Co., 811 F.2d 1243, 1244, 1246 n. 3 (9th Cir.1987) (gross negligence sufficient). Balistreri has alleged facts which could establish either intentional harassment by defendants, or deliberate or reckless indifference to her safety. These allegations are sufficient to state a Sec. 1983 claim. See, e.g., Taylor v. Ledbetter, 818 F.2d 791, 793 (11th Cir.1987) (en banc); Davidson v. O'Lone, 752 F.2d 817, 828 (3rd Cir.1984) (en banc), aff'd on other grounds sub nom. Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986); White v. Rochford, 592 F.2d 381, 385 (7th Cir.1979); see also Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (prison officials' deliberate disregard of prisoner's serious illness or injury violates Eighth Amendment and is cognizable under Sec. 1983).

The heart of Balistreri's claim is that the Pacifica police failed to take steps to respond to the continued threats, harassment and violence towards Balistreri by her estranged husband. These allegations, if true, would implicate Balistreri's right to be free from physical harm and restraint comprised by the due process right to liberty. See Ingraham v. Wright, 430 U.S. 651, 674-75, 97 S.Ct. 1401, 1414, 51 L.Ed.2d 711 (1977); Rutherford v. City of Berkeley, 780 F.2d 1444, 1447 (9th Cir.1986). ³ While there is, in general, no constitutional duty of state officials to protect members of the public at large from crime, see Martinez v. California, 444 U.S. 277, 284-85, 100 S.Ct. 553, 558-59, 62 L.Ed.2d 481 (1980); Ketchum, 811 F.2d at 1247; Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982), such a duty may arise by virtue of a "special relationship" between state officials and a particular member of the public. Ketchum, 811 F.2d at 1247; Escamilla v. Santa Ana, 796 F.2d 266, 269 (9th Cir.1986).

In Escamilla v. Santa Ana, this...