Vaughan v. Ricketts

• Decision Date: 13 December 1991
• Docket Number: 90-16328 and 90-16332,Nos. 90-16282,s. 90-16282
• Parties: Tracy Ray VAUGHAN, et al., Plaintiffs, and Mark Koch, Donald Nelson, and Mark Osborne, Plaintiffs-Appellants, v. James RICKETTS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1464

950 F.2d 1464

21 Fed.R.Serv.3d 959

Tracy Ray VAUGHAN, et al., Plaintiffs and Mark Koch, Donald Nelson, and Mark Osborne, Plaintiffs-Appellants, v. James RICKETTS, et al., Defendants-Appellees.

Nos. 90-16282, 90-16328 and 90-16332.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 23, 1991.

Decided Dec. 13, 1991.

James Weinstein and Robert P. Jarvis, Arizona State University College of Law Appellate Clinic, Tempe, Ariz., for plaintiffs-appellants Koch and Nelson.

Deborah M. Fine, Lewis & Roca, Phoenix, Ariz., for plaintiff-appellant Osborne.

Thomas J. Dennis, Asst. Atty. Gen., Phoenix, Ariz., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before D.W. NELSON, HALL and FERNANDEZ, Circuit Judges.

D.W. NELSON, Circuit Judge:

A group of Arizona state prisoners brought this § 1983 action against prison officials, alleging that they had violated the prisoners' Fourth and Eighth Amendment rights by conducting rectal searches for explosives. The case was tried before a jury, which concluded that the prison officials violated both the Fourth and Eighth Amendments, but that they were entitled to qualified immunity from suit on both claims.

Koch, Nelson and Osborne, all prisoners who were searched, appeal. They claim that there is insufficient evidence to support the jury's finding of qualified immunity, and therefore that they were entitled to a judgment notwithstanding the verdict (jnov). Even if there is sufficient evidence, the appellants maintain that the findings of Fourth and Eighth Amendment violations are inconsistent with a finding of qualified immunity, and that they are entitled to a new trial on the basis of inconsistent verdicts. We conclude that the Eighth Amendment issue is not properly before us, and remand the case in part to the district court for further proceedings. We affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

On March 15, 1984, a cellblock warden at Arizona State Prison at Florence received a letter from an inmate informing him that inmates in Wing One were hiding explosives in their rectal cavities. The informant also mentioned that the prisoners had blasting caps but did not know who was hiding all of them. At an interview, the This information was reported to the appellees, Ricketts, Director of the Arizona Department of Corrections ("DOC"), Bramlett, Inspector General of the DOC, and Wawrzaszek, Warden of the prison. After consulting with each other, the appellees ordered rectal searches of 15 inmates in Wing One. They authorized the medical director to use health care staff to conduct the exams. The searches revealed seventeen balloons of gunpowder and a detonator cord, but none of the blasting caps the informant had mentioned.

informant produced a balloon of gunpowder from his rectum.

On March 21, 1984, an inmate in Wing Three informed Wawrzaszek of a bomb he had seen in the shower. Prison officials feared that explosive materials would reach inmates in Wing Two by "fishlining"--a process inmates have developed to pass objects to one another. The defendants therefore ordered a broader round of searches. On March 22 and 23, 150 prisoners in Wings Two and Three were searched, including the appellants, inmates in Wing Two. No blasting caps were found. On March 27, investigators discovered the caps in materials officials had confiscated during the March 15 search.

The searches were conducted by a correctional medical assistant ("CMA"). The CMA wore a glove only on his right hand during each search; after searching a prisoner the CMA pulled off the glove with his left hand and put on a new one. He did not wash his hands between searches. The searches occurred in a non-sanitary hallway with prison guards attending. Prisoners were not examined for medical conditions that could be aggravated by the search. Some prisoners were apparently physically forced to submit to the search. Appellants presented uncontroverted evidence that prison officials laughed at prisoners during the search, and that appellant Koch was not allowed to clean himself or button his pants for over an hour after the search.

Prisoner Vaughan filed a complaint under 42 U.S.C. § 1983 on April 16, 1984. His case was consolidated with several others arising from the same search, including the claims brought by appellants. The prison officials moved for summary judgment on qualified immunity grounds. The district court denied their motion. This court upheld the denial of summary judgment. Vaughan v. Ricketts, 859 F.2d 736 (9th Cir.1988) ("Vaughan I "), cert. denied 490 U.S. 1012, 109 S.Ct. 1655, 104 L.Ed.2d 169 (1989).

The case proceeded to trial. A jury found that the defendants had violated Koch's, Nelson's and Osborne's Fourth Amendment rights and Koch's Eighth Amendment rights. However, the jury also found that all defendants were entitled to qualified immunity on both counts. Plaintiffs moved for jnov. The district court denied the motion, finding that sufficient evidence supported the jury decision of qualified immunity.

Appellants challenge the finding of qualified immunity on three grounds. First, they claim that the finding of qualified immunity was inconsistent with Vaughan I, and so violated the law of the case doctrine. Second, they claim that there was insufficient evidence for the jury to have found qualified immunity, and therefore that the district court improperly denied their jnov motion. Third, they argue that the jury's verdicts as to liability and immunity were irreconcilably inconsistent, and that a new trial was therefore required. Appellees in turn contend that Koch did not file a timely notice of appeal.

DISCUSSION

I. Timely Filing

Appellees argue that Koch's pro se appeal is untimely because his notice of appeal was stamped by the court clerk more than thirty days after the order was recorded. The thirty-day filing requirement of Fed.R.App.P. 4(a) is mandatory and jurisdictional. Bird v. Reese, 875 F.2d 256, 256-57 (9th Cir.1989). However, the Supreme Court has held that prisoners filing pro se need only deliver their notice of appeal to prison officials within 30 days with instructions to forward it to the court Appellees contend that the Houston rule does not apply because Koch was not really pro se. Koch was represented by counsel at trial, and he never formally discharged his lawyer. Furthermore, he did not seek a judge's approval for the change in representation status. This Circuit requires an "unequivocal" demand from the party wishing to represent himself. Meeks v. Craven, 482 F.2d 465, 467 (9th Cir.1973). The local district court rules governing this case stress that, to appear pro se, "an order of substitution shall first have been made by the court after notice to the attorney of each such party, and to the opposite party." U.S. District Court for the District of Arizona, Rule 8(c). Koch did not follow this procedure in discharging his attorney. He says that after the trial, his attorney simply told him that he was on his own and would have to file a notice of appeal pro se.

                clerk.  Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245 (1988).   Koch contends that he falls within this exception
                

The purposes behind the "unequivocal demand" requirement may not be furthered by applying it in this case. The court in Meeks enunciated the rule to prevent "convicted criminals" from being "given a ready tool with which to upset adverse verdicts after trials at which they had been represented by counsel." 482 F.2d at 467. This concern has no relevance here. Koch did not ask to represent himself during his trial. Nor is he now claiming that he was not adequately represented at trial.

A second reason for the unequivocal demand requirement is the possible confusion and disruption that might result during trial if both party and counsel think they have the authority of representation. See Duke v. United States, 255 F.2d 721, 724-26 (9th Cir.), cert. denied 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365 (1958). If as Koch claims his attorney had divested himself of any responsibility, no similar danger existed during his appeal.

The final reason for requiring unequivocal notice to the court is the concern that a party discharging his or her counsel does not understand the full import of this decision and will not be able to provide himself or herself with competent representation. United States v. Dujanovic, 486 F.2d 182, 186 (9th Cir.1973). In this case, application of the rule would not further that policy if Koch did not choose to discharge his attorney, but his attorney ceased representation on his own. Although Koch did not make an unequivocal demand to the judge for self-representation, for all practical purposes he was acting pro se. He filed a notice of appeal and other motions without the involvement of any attorney. It would be neither logical nor just to treat Koch as having an attorney if he has had none of the benefits representation is supposed to provide. The district court should determine whether Koch's claims of abandonment by counsel are true. If they are, Koch should be treated as a pro se appellant to whom the Houston rule applies.

Assuming that his version of events is correct, Koch was in the same position as the pro se prisoners described in Houston, 487 U.S. at 270-72, 108 S.Ct. at 2381-83. In that case, the Supreme Court decided that because of the barriers confronting prisoners filing pro se appeals, their notices did not have to be received by the court clerk within the time limit specified for filing an appeal. Like the Houston prisoners, Koch could not hand deliver the notice or call the court clerk; neither could he trust a lawyer to file on time.

Therefore, we would consider Koch's appeal timely under Houston as long as he delivered the notice to prison officials within the filing time limit with instructions that...