Collins v. Pitchess, 79-3000

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Before BROWNING and POOLE; POOLE
• Citation: Collins v. Pitchess, 641 F.2d 740 (9th Cir. 1981)
• Decision Date: 19 May 1981
• Docket Number: No. 79-3000,79-3000
• Parties: John C. COLLINS, Plaintiff-Appellant, v. Peter J. PITCHESS et al., Defendants-Appellees.

Page 740

641 F.2d 740

John C. COLLINS, Plaintiff-Appellant, v. Peter J. PITCHESS et al., Defendants-Appellees.

No. 79-3000.

United States Court of Appeals Ninth Circuit.

Submitted Aug. 7, 1980.

Decided April 6, 1981.

Rehearing Denied May 19, 1981.

John C. Collins, in pro per.

Tim Loring, Los Angeles, Cal., for defendants-appellees.

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

Before BROWNING and POOLE, Circuit Judges, and WILKINS, ^* District Judge.

POOLE, Circuit Judge:

Appellant, Collins, a prisoner incarcerated in California's Soledad state prison, appeals a judgment dismissing his civil rights complaint against his former custodian without prejudice on the ground that appellant was unable to effectively litigate his action while incarcerated. As the district court erred in dismissing appellant's complaint because of his prisoner status, we reverse.

I

On January 20, 1977, appellant was permitted to file an in forma pauperis complaint against his former custodian, Peter J. Pitchess, Sheriff of Los Angeles County. While the district court accepted the complaint, a final determination whether appellant would be permitted to proceed in forma pauperis was deferred.

The complaint, purporting to state causes of action under 42 U.S.C. §§ 1983, 1985, alleged that while in appellee's custody, appellant was assaulted by several deputy sheriffs and placed in isolation without cause for five days. Appellant's complaint theorized that these injuries stemmed from appellee's failure to implement policies to protect inmates from violent attacks by deputies, appellee's knowledge of and conspiratorial participation in mistreatment of inmates, and appellee's wilful neglect of duty.

Appellee filed a motion for summary judgment arguing that the complaint failed to state a claim or, in the alternative, was time barred by the three year statute of limitations applicable in civil rights actions. The district court ruled that the complaint was legally sufficient and timely because, under California law, the statute of limitations was tolled while appellant was imprisoned. Summary judgment was denied.

On December 8, 1977, appellee filed a motion to dismiss without prejudice on the ground that appellant was unable to prosecute effectively his action while incarcerated. On February 2, 1978, a magistrate recommended dismissal without prejudice because the case had progressed little since filed and effective prosecution was impossible during appellant's incarceration. The magistrate also recommended that permission to proceed in forma pauperis be denied, relying again on appellant's imprisonment.

The district court adopted the magistrate's findings and ordered that the complaint be dismissed without prejudice to its being refiled after Collins' release from prison. Although the district court's brief dismissal order appears to have adopted all of the magistrate's findings and recommendations, no particular reference to in forma pauperis proceedings is included in the order. A timely notice of appeal brought the case here.

II

The determination in this case, that dismissal was appropriate because appellant's incarceration precluded effective prosecution, was legally erroneous: "the fact that the plaintiff is a prisoner does not deprive him of capacity to sue and is not a ground for dismissal." Cancino v. Sanchez, 379 F.2d 808, 809 (9th Cir. 1967); accord, Wimberly v. Rogers, 557 F.2d 671, 673 (9th Cir. 1977). Dismissal on the basis of prisoner status was error.

Although prisoner status, and the infirmities it engenders, may not provide the basis to dismiss a complaint, that is not to say a prisoner's complaint is totally insulated from dismissal for want of prosecution. Every plaintiff in federal court has a responsibility to prosecute his action diligently. Failure to do so may permit the district court to dismiss. Incarceration does not absolve a plaintiff of this responsibility. In this case, however, the record indicates that Collins has been active in prosecuting his suit, submitting various moving papers to the court and participating in discovery. It may well be, as the magistrate found, that Collins "lacks the legal skills with which to bring a formidable (and here demonstrably evasive) opponent to grips." But this is a familiar problem to any district court confronted, as here, with a pro se plaintiff. It does not reflect a lack of diligence warranting dismissal for want of prosecution.

III

Notwithstanding the erroneous reliance below on prisoner status as a basis to dismiss, appellee argues that we may affirm because the district court had discretionary authority to deny appellant the right to proceed in forma pauperis. As we have indicated, there is some uncertainty as to whether the district judge intended to deny appellant an in forma...