Hargis v. Foster

• Citation: 312 F.3d 404
• Decision Date: 07 March 2002
• Docket Number: No. 00-35466.,00-35466.
• Parties: Christopher HARGIS, Plaintiff-Appellant, v. Phil FOSTER, Beauchamp, Lahaei, D.W. McEcheron, and D. H.O. Crawford, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

312 F.3d 404

Christopher HARGIS, Plaintiff-Appellant, v. Phil FOSTER, Beauchamp, Lahaei, D.W. McEcheron, and D. H.O. Crawford, Defendants-Appellees.

No. 00-35466.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 8, 2001.

Filed March 7, 2002.

Amended Opinion Filed December 3, 2002.

COPYRIGHT MATERIAL OMITTED

Gregory Mann Miller, Seattle, WA, for the plaintiff-appellant.

Stephanie A. Altig, Boise, ID, for the defendants-appellees.

Appeal from the United States District Court for the District of Idaho; Mikel H. Williams, Magistrate Judge, Presiding. D.C. No. CV-98-00510-MHW.

Before: B. FLETCHER, McKEOWN, and TALLMAN, Circuit Judges.

ORDER

The opinion of this court filed March 7, 2002, slip op. at 3727 , is amended as follows:

On page 3737 [at 1159] of the slip opinion, delete the first sentence of the first full paragraph, and substitute in its stead:

Based on this evidence, a jury could reasonably conclude that the prison officials acted unreasonably in characterizing Hargis's statements as an attempt to coerce Beauchamp into not enforcing the shaving rule.

On page 3738 [at 1159] delete the entirety of the text of III. after the heading. Replace it with the following:

Hargis requested voluntary dismissal of his retaliation and Eighth Amendment claims pursuant to Fed.R.Civ.P. 41(a)(2) without specifying that he was requesting dismissal without prejudice. The district court granted the motion and dismissed with prejudice. Hargis objects to the dismissal with prejudice. We review a district court's determination of the terms and conditions of dismissal under Rule 41(a)(2) for an abuse of discretion. Koch v. Hankins, 8 F.3d 650, 652 (9th Cir.1993).

Rule 41(a)(2) provides:

Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper .... Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

Rule 41 vests the district court with discretion to dismiss an action at the plaintiff's instance "upon such terms and conditions as the court deems proper." That broad grant of discretion does not contain a preference for one kind of dismissal or another. In a separate clause, Rule 41 provides that orders that fail to specify whether dismissal is with or without prejudice are to be interpreted as dismissals without prejudice. In this limited sense, the rule has a "default position," but this default position applies to the interpretation of a silent order, not to the district court's discretionary decision in the first instance. See Semtek Int'l v. Lockheed Martin Corp., 531 U.S. 497, 503, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) (construing similar text in Rule 41(b) as "nothing more than a default rule for determining the import of a dismissal"); 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2367 (2d ed. 1994) ("[I]f the plaintiff either moves for dismissal without prejudice or fails to specify whether the request is for dismissal with or without prejudice, the matter is left to the discretion of the court. The court may grant dismissal without prejudice or may require that the dismissal be with prejudice. If the court's order is silent on this point, the dismissal is without prejudice....").

In the instant case, Hargis requested a dismissal without specifying whether he was requesting dismissal with or without prejudice, implicitly accepting either determination by the district court. That court could have remained silent on this point, in which case we would find the dismissal to have been without prejudice. Instead, it made its determination. Because Hargis's motion did not preclude this determination, we find that the district court did not abuse its discretion in doing so.

On page 3740 [at 1160] delete the text of IV following the heading (Conclusion). Replace it with the following:

Because Hargis has raised a triable issue of fact as to whether the coercion regulation was constitutional as applied to him, we reverse the district court's summary judgment on the First Amendment free speech claim and remand for further proceedings. The district court's dismissal of the retaliation and Eighth Amendment claims is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

The dissent is amended as follows:

On page 3746-47 [at 1164] of the slip opinion, delete the paragraph beginning "our opinion also errs ..."

On page 3747 [at 1164] of the slip opinion, modify the final remaining paragraph to read: "I agree that it was too late to raise an ADA claim on appeal and that the district court acted within its discretion in dismissing Hargis's retaliation and Eighth Amendment claims. Otherwise, I respectfully dissent."

With these amendments a majority of the panel has voted to deny rehearing. The full court has been advised of these amendments and has voted to deny the petition for rehearing en banc.

The petition for rehearing and the petition for rehearing en banc are denied. No further petition for rehearing en banc will be entertained. The Clerk is directed to file and republish the majority opinion and the dissent as amended.

The mandate shall issue forthwith.

OPINION

BETTY B. FLETCHER, Circuit Judge

Christopher Hargis, an Idaho prisoner who suffers from a neurological disorder causing jerking and shaking, brings this action, pursuant to 42 U.S.C. § 1983, against the defendant prison officials in their individual and official capacities for violating his First and Eighth Amendment rights. He asserts that the defendants violated his First Amendment right to free speech when they punished him under a coercion regulation. Hargis was disciplined for violating the coercion regulation when he informed a guard that shaving with a razor blade endangered his safety due to his medical condition and that the guard's actions and statements could come up in pending state court litigation. Hargis also claims the defendants used the coercion regulation as a pretext to retaliate against him for exercising his First Amendment right to petition the government for redress of grievances. Finally, he claims the defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment by forcing him to injure himself by shaving with a razor blade. The district court granted the defendants summary judgment on the free speech claim and dismissed the remaining claims.

We are asked to decide two questions: (1) whether there is a triable issue of fact as to whether the defendants' application of the coercion regulation in this case violated Hargis's right to free speech and (2) whether the district court abused its discretion in dismissing Hargis's retaliation and Eighth Amendment claims with prejudice. We answer both questions in the affirmative. In addition, Hargis's newly-appointed counsel raises an ADA claim. However, because the ADA claim was neither alleged nor argued in the district court, we will not consider the ADA claim on this appeal. United States v. Antonakeas, 255 F.3d 714, 721 (9th Cir.2001) (noting that ordinarily this court will not hear issues raised for the first time on appeal).

I. Factual and Procedural Background

Hargis suffers from a medical condition known as spasmodic torticollis, a neurological disorder that causes his head to twist and jerk uncontrollably. In an attempt to obtain medical treatment for this condition, Hargis petitioned for a writ of habeas corpus in state court. While the case was pending, a prison guard, Defendant Beauchamp, ordered Hargis to shave. Prison regulations require inmates to shave daily. Hargis attempted to shave but cut himself as a result of a neck spasm after shaving only half his face. The next day Beauchamp warned that he would issue a disciplinary offense report ("DOR") if Hargis did not shave.

When the guard saw Hargis later that day, he still had not shaved. Hargis explained that he had a medical condition that made it impossible for him to shave without cutting himself. Beauchamp responded by explaining that he had discussed Hargis's medical problem with the prison medical staff and was told that Hargis had no diagnosed medical condition that would interfere with his ability to shave. Hargis suggested to Beauchamp, as an alternative to the DOR, that he be allowed to use an electric razor. According to Hargis, Beauchamp's supervisor had allowed him to use an electric razor in the past. Beauchamp refused to give Hargis an electric razor. Hargis requested to speak with the medical personnel himself or to a supervisor. Beauchamp refused.

Hargis informed Beauchamp of the pending state court proceeding and asked if Beauchamp would wait until the issue was adjudicated. Again, Beauchamp refused. Finally, Hargis told Beauchamp that anything he said or did could come up in litigation later. Beauchamp asked Hargis if he was threatening him, and Hargis told him he was not threatening him but just informing him that his actions could be subject to review by the court. Hargis explained to the guard that he was not trying to challenge Beauchamp's authority, rather he was only asking for patience and understanding during the pendency of the state court proceedings.

After this conversation, Hargis submitted a concern form complaining that Beauchamp was trying to "coerce" him into injuring himself. Beauchamp answered that Hargis's claims of a medical condition were unsubstantiated, and that Beauchamp was not coercing him, but rather was ordering him to shave. Later that night, Hargis received a DOR. The DOR charged Hargis not with failing to shave (a Class-D infraction), but with the more serious Class-A offense of coercion. The coercion regulation specifically prohibits "involvement in any disorderly conduct by coercing or attempting to coerce any official action."

The DOR was approved after a...