Hernandez v. Denton

Decision Date23 November 1988
Docket NumberNos. 86-2139,87-1693 and 87-1694,s. 86-2139
Citation861 F.2d 1421
PartiesMike HERNANDEZ, Plaintiff-Appellant, v. George F. DENTON, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Richard W. Nichols, McDonough, Holland & Allen, Sacramento, Cal., for plaintiff-appellant.

Patricia C. Esgro, Deputy, Atty. Gen., State of Cal., Sacramento, Cal., for defendants-appellees.

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

Before ALDISERT, * WALLACE and SCHROEDER, Circuit Judges.

SCHROEDER, Circuit Judge:

Appellant is a prisoner proceeding in forma pauperis in suits against prison officials at a number of prisons. He appeals the district court's dismissal of three complaints as "frivolous" under 28 U.S.C. Sec. 1915(d).

Appellant filed five pro se complaints alleging 42 U.S.C. Sec. 1983 violations. The three complaints at issue in this appeal made the following allegations:

(1) Due process claims: Appellant alleges that he was placed in administrative segregation without written notice of the reasons, an opportunity to present evidence, an opportunity to be represented by counsel or written justification. In addition, appellant alleges that he was punished before receiving procedural due process in connection with other alleged rule violations;

(2) Eighth amendment claims other than rape claims: Appellant alleges that he had to sleep without a mattress for one night and without a blanket for an unspecified period of time. In addition, he alleges that he was not issued shoes for a month. Finally, appellant alleges physical and verbal abuse by prison officials;

(3) Rape claims: Appellant alleges that he was drugged and homosexually raped over 28 times by both inmates and prison officials at different institutions.

The district court referred all cases to a magistrate. The defendants had been served and had answered with respect to some but not all of the claims. The magistrate reviewed all claims and recommended that the district court dismiss them because the complaints, viewed together, indicated that appellant's rape allegations were frivolous. The magistrate did not discuss the other claims. The district court followed the magistrate's recommendation and dismissed pursuant to section 1915(d), which provides in pertinent part as follows:

The court may dismiss [a case proceeding in forma pauperis] if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

28 U.S.C. Sec. 1915(d).

We have held that when a court dismisses a pro se complaint for failure to state a claim, the court should draft a few sentences explaining to the plaintiff the deficiencies and allow the plaintiff to amend. Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir.1987); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621 (9th Cir.1988). Because pro se litigants are unskilled in the law, they are prone to pleading errors. Without guidance, amendments by these litigants are made without an understanding of the deficiencies and are usually insufficient to cure deficient pleadings. Thus, when instructing pro se litigants to amend, district courts should briefly explain the complaints' deficiencies so that the pro se plaintiffs will be better equipped to amend correctly. Noll, 809 F.2d at 1448. However, if it "is absolutely clear that the deficiencies of the complaint could not be cured by amendment," the district court may dismiss. Franklin v. Murphy, 745 F.2d 1221, 1228 n. 9 (9th Cir.1984) (quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980)).

The procedural due process claims before the district court do not appear sufficient on the face of the complaints. We have ruled that, because prison safety is paramount, the procedural due process rights of prisoners are adequately protected by post-segregation decisions that administrative segregation is justified. Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). "[T]he due process clause does not require detailed written notice of charges, representation by counsel or counsel-substitute, an opportunity to present witnesses, or a written decision describing the reasons for placing the prisoner in administrative segregation." Id. at 1100-01. In this case, appellant alleges that he was placed in administrative segregation without written notice, an opportunity to present evidence, an opportunity to be represented by counsel or written justification; appellant did receive post-deprivation hearings. Appellant's claims fall squarely within Toussaint's holding. Therefore, he does not state a claim for violation of due process and no amendment could cure this deficiency. These claims should be dismissed.

The district court did not address the eighth amendment claims when it dismissed appellant's complaint. The eighth amendment proscribes punishments incompatible with "evolving standards of decency" such as those "so totally without penological justification that [they] result[ ] in the gratuitous infliction of suffering." Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)). Appellant alleges that he had to sleep without a mattress for one night and without a blanket for an unspecified period of time, that he was not issued shoes for a month, and that he was physically and verbally abused by prison officials. "Prison officials have a duty to take reasonable steps to protect inmates from physical abuse." Hoptowit, 682 F.2d at 1250. Physical and verbal abuse by officials indicates a deliberate indifference by prison officials to the safety needs of prisoners; therefore, appellant has stated an eighth amendment claim based on physical and verbal abuse because such abuse is "totally without penological justification." Id. at 1237.

In addition, appellant may be able to state an eighth amendment claim based upon his allegation of deprivation of shoes for a month. Appellant has not alleged additional facts suggesting deliberate indifference or gratuitous infliction of suffering. He may, however, be able to state an eighth amendment claim with respect to the shoes if he amends his complaint. He should be permitted an opportunity to amend.

Appellant alleges that he slept without a blanket for an unspecified amount of time in a room across from broken windows. Appellant similarly has alleged no additional facts to indicate wanton infliction of pain or deliberate indifference, but appellant should similarly be allowed to amend this claim of deprivation.

Appellant's allegation that he slept without a mattress for only one night is insufficient to state an eighth amendment violation and no amendment can alter that insufficiency. We affirm the district court's dismissal of his claim for one night's deprivation of a mattress.

The district court's dismissal of appellant's homosexual rape claims as "frivolous" under 28 U.S.C. Sec. 1915(d) deserves more extensive discussion. For the purposes of determining whether a complaint is "frivolous," the court presumes that the plaintiff's allegations are true. Franklin, 745 F.2d at 1228. In addition, courts must construe allegations in pro se complaints liberally. Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 408 (9th Cir.1985).

If appellant's rape claims are not "frivolous," they may state claims for violation of both the eighth amendment and the fourteenth amendment. The eighth amendment dictates that prison officials may not be deliberately indifferent to the safety needs of inmates because such indifference may result in the unnecessary infliction of pain. Hoptowit, 682 F.2d at 1250. Appellant's allegations of rape by prison guards, if construed liberally, indicate deliberate indifference. His allegations that the guards allowed his rape by other prisoners, construed liberally, also indicate deliberate indifference.

In addition, prisoner beatings by guards involving excessive force amounting to brutality are deprivations of a liberty interest in violation of due process. McRorie v. Shimoda, 795 F.2d 780, 785 (9th Cir.1986). Appellant's allegations that he was raped by prison guards are no less troubling than the claims of beatings in McRorie. Therefore, they state a claim for violation of appellant's substantive due process rights.

Finally, insufficient protection of a prisoner resulting in harm inflicted by other inmates may also violate the prisoner's due process rights. Youngberg v. Romeo, 457 U.S. 307, 315-16, 102 S.Ct. 2452, 2457-58, 73 L.Ed.2d 28 (1982) (right to personal security protected by substantive due process and not extinguished by imprisonment); Escamilla v. City of Santa Ana, 796 F.2d 266, 269-70 (9th Cir.1986) (police have a duty to protect individuals if there is a "custodial relationship"). See Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.1980) (if prison officials know of pervasive risk of harm to prisoner and fail to protect that prisoner, prisoner has a viable section 1983 claim for violation of his constitutional rights), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981). In this case, appellant alleges that prison guards allowed other inmates to enter his cell and rape him. This allegation, if not frivolous, appears to state a claim for violation of appellant's substantive due process rights.

The district court, however, deemed the claims frivolous. Disposition of the rape claims therefore requires some understanding of what is meant by "frivolous." This court has examined the "frivolous" standard under section 1915(d) at length in Franklin v. Murphy, 745 F.2d 1221 (9th Cir.1984). We there adopted procedures proposed by the Federal Judicial Center in Recommended Procedures for Handling Prisoners' Civil Rights Cases in the Federal Courts 57-58 (1980). That influential...

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