Gillespie v. Civiletti, 78-1447

• Decision Date: 06 October 1980
• Docket Number: No. 78-1447,78-1447
• Citation: 629 F.2d 637
• Parties: Julius Lee GILLESPIE, Plaintiff-Appellant, v. Benjamin R. CIVILETTI, * Attorney General, Jack Wayne, Marshal, Michael O'Brien, Marshal, John Doe, Superintendents # 1-10, John Doe, Marshals # 11-20, John Doe, Guards # 21-100, Individually and in their official capacity and their employees, agents, subordinates and assignees, and United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 637

629 F.2d 637

Julius Lee GILLESPIE, Plaintiff-Appellant, v. Benjamin R. CIVILETTI, ^* Attorney General, Jack

Wayne, Marshal, Michael O'Brien, Marshal, John Doe,

Superintendents # 1-10, John Doe, Marshals # 11-20, John

Doe, Guards # 21-100, Individually and in their official

capacity and their employees, agents, subordinates and

assignees, and United States of America, Defendants-Appellees.

No. 78-1447.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 1980.

Decided Oct. 6, 1980.

Wayne Lieb, Institutional Legal Services, Seattle, Wash., for plaintiff-appellant.

James B. Crum, Asst. U.S. Atty., Spokane, Wash., on brief; Judith A. Corbin, Asst. U.S. Atty., Spokane, Wash., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington.

Before ANDERSON and SKOPIL, Circuit Judges, and BYRNE, ^** District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Appellant, Julius Lee Gillespie, appeals the district court's dismissal of his complaint against the United States, the Attorney General, United States Marshals Jack Wayne and Michael O'Brien, and various "John Doe" defendants. ¹

I. BACKGROUND

The appellant, in his pro se complaint, attempted to allege claims against the defendants under 42 U.S.C. § 1983; 42 U.S.C. § 1985; the Federal Tort Claims Act; and the first, fifth, sixth, eighth and fourteenth amendments of the United States Constitution. Appellant's complaint alleged that:

1. On or about September 23, 1974, he was taken from a jail cell in Tacoma, Washington, and was extradited to Raleigh, North Carolina, in the custody of United States Marshals Wayne and O'Brien;

2. On the way he was incarcerated in federal, state, and local holding facilities in Pocatello and Twin Falls, Idaho; Cheyenne, Wyoming; Kansas City, Missouri; Springfield, Illinois; Lexington, Kentucky; Knoxville, Tennessee; and Charlotte, North Carolina;

3. He arrived in Raleigh, North Carolina, on or about December 6, 1974;

4. During the entire two and a half month period, he was not allowed to change his clothes or shower; he was not given any washroom items or toiletries such as toothpaste; and he was not given any medical items or medical care; as a result he developed a severe skin disease, mental depression, abnormal emotional behavior, and severe emotional distress;

5. While in a jail cell in Kansas City, Missouri, he requested to be removed from a large holding cell because other prisoners had threatened his life; he was not moved, and later that evening he was beaten and sexually molested by several prisoners;

6. In Lexington, Kentucky, he was placed in an isolation cell that had cracks in its walls which allowed the temperature in his cell to reach near freezing during that night; and

7. During the entire period, he was denied access to a telephone.

Jurisdiction was alleged to exist under 28 U.S.C. §§ 1343, 1346(b), 1331, 2201 and 2202. Appellant sought a declaratory judgment that the acts, practices and omissions alleged in the complaint were unconstitutional and in violation of federal law. Appellant also sought compensatory damages in the sum of two million dollars, punitive damages in the sum of one million dollars, appointment of counsel, and an award of costs and attorney's fees.

The defendants Civiletti, Wayne, and O'Brien moved for a dismissal of the complaint, stating that the court lacked subject matter jurisdiction. The basis of this contention was that the defendants were federal employees and appellant's claims under 42 U.S.C. § 1983 only applied to individuals who were acting under color of state law.

The district court dismissed the appellant's § 1983 and § 1985 claims, finding that the named defendants were all federal officers, and no facts were alleged that they were acting under color of state law.

The claims under the Federal Tort Claims Act were dismissed as the court found that on the face of the complaint, it did not appear that the claim had been initially presented to a federal agency as required by law. The district court then dismissed the complaint in its entirety without explanation, and entered judgment dismissing the action.

II. DISCUSSION

A. Motion to Dismiss

In considering a motion to dismiss, the general rule is that a complaint should not be dismissed on the pleadings "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, 101-102, 2 L.Ed.2d 80 (1957); California ex rel. Younger v. Mead, 618 F.2d 618, 620 (9th Cir.1980); Amfac Mortgage Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426, 429 (9th Cir.1978). In evaluating a complaint, any doubts should be construed in favor of the pleader. Ernest W. Hahn, Inc. v. Codding, 615 F.2d 830, 834-835 (9th Cir.1980); Amfac Mortgage Corp., 583 F.2d at 430.

While the above-stated general rules apply equally as well to civil rights complaints brought by pro se plaintiffs, such pleadings are held to a less stringent standard than formal pleadings drafted by lawyers. See, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). Such plaintiffs should be given "an opportunity to amend (their) complaint(s) to overcome any deficiency unless 'it clearly appears . . . that the deficiency cannot be overcome by amendment.' " Stanger v. City of Santa Cruz, slip op. 2470 (9th Cir. March 24, 1980), citing Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir.1970).

B. The Attorney General of the United States and the United States

Appellant has conceded, on appeal, that no cause of action was stated against the Attorney General as to any of the claims. Therefore, the district court's dismissal of the complaint against the Attorney General is affirmed.

As to the United States, appellant, on appeal, has conceded that no cause of action was alleged except for the claims under the Federal Tort Claims Act (FTCA).

The district court dismissed the FTCA claims because on the face of the complaint, it appeared that the appellant had failed to present the claim to a federal agency as required by 28 U.S.C. § 2675. The district court did not consider whether causes of action were stated under the FTCA.

The timely filing of an administrative claim is a jurisdictional prerequisite to the bringing of a suit under the FTCA, Caton v. United States, 495 F.2d 635 (9th Cir.1974), and, as such, should be affirmatively alleged in the complaint. A district court may dismiss a complaint for failure to allege this jurisdictional prerequisite. Martin v. United States, 436 F.Supp. 535 (S.D.Cal.1977). However, the pleader should be given an opportunity to file an amended complaint to attempt to cure such pleading defects. See, Id., 436 F.Supp. at 538.

In the present case, appellant failed to allege that he had timely filed an administrative claim; thus the district court's dismissal of the claim was appropriate. However, in dismissing the claim, the court also entered judgment which precluded the appellant from possibly curing the defect in the pleading. We, therefore, remand as to the FTCA claims to allow appellant to file an amended complaint. If the district court finds the jurisdictional defects to have been cured, the court should then determine whether causes of action were stated under the FTCA.

C. United States Marshals Wayne and O'Brien

The district court ruled that 42 U.S.C. § 1983 and § 1985 applied only to individuals who acted under color of state law. Upon finding that the complaint did not allege facts which showed that the United States Marshals Wayne and O'Brien had acted under color of state law, the district court dismissed the § 1983 and § 1985 claims against Wayne and O'Brien. The court also dismissed all the other claims without discussion.

1. § 1983 and § 1985

Appellant agrees that Wayne and O'Brien had not acted under color of state law and that, therefore, the dismissal of the § 1983 claims was proper. However, appellant contends that § 1985 does not require action under the color of state law and thus the district court erred in dismissing those claims.

Appellant's argument is well-founded. Although both § 1983 and § 1985 are civil rights statutes, they have different origins. Section 1983 is based upon the fourteenth amendment and thus concerns deprivations of rights that are accomplished under the color of state law. Tongol v. Usery, 601 F.2d 1091, 1097 (9th Cir.1979); Bowers v. Campbell, 505 F.2d 1155, 1158 (9th Cir.1974). Section 1985, on the other hand, is derived from the thirteenth amendment and covers all deprivations of equal protection of the laws and equal privileges and immunities under the laws, regardless of its source. See, Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (private acts cognizable under § 1985(3)); Williams v. Wright, 432 F.Supp. 732 (D.Or.1976) (acts of federal officers can violate § 1985).

To state a cause of action under § 1985(3), a complaint must allege (1) a conspiracy, (2) to deprive any person or a class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, (3) an act by one of the conspirators in furtherance of the conspiracy, and (4) a personal injury, property damage or a deprivation of any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. at 102-103, 91 S.Ct. at 1798.

After reviewing appellant's complaint, we cannot say that it satisfactorily pleads a § 1985(3) claim. There is no allegation of a conspiracy or that there was a racially or class-based, invidiously discriminatory animus behind the actions which he alleges took place. However, his allegations that he was denied medical and health needs at ten different holding facilities, and that he was a black prisoner do indicate that the deficiencies in the pleadings could possibly be overcome by amendments to the...