Mike Hernandez v. George F. Denton

861 F.2d 1421 Mike HERNANDEZ, Plaintiff-Appellant, v. George F. DENTON, et al., Defendants-Appellees. Nos. 86-2139, 87-1693 and 87-1694. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 12, 1988. Decided Nov. 23, 1988. 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: 1 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). 2 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: 3 (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…

concurring and dissenting:

When Mr. Monroe and his family were routed out of bed in the middle of the night *1428 by the Chicago police, and made to stand naked in their living room while the cops ransacked every room in their home, emptying drawers and ripping mattress covers, the Supreme Court took long overdue action. In Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961), the Court resuscitated, if not resurrected, the remedy of the Civil Rights Act of 1874, the now familiar 42 U.S.C. § 1983 . Since that day, this federal remedial statute has been successfully utilized to correct tens of thousands of civil rights violations of all description, in high school classrooms to maximum security wings of state prisons.

Section 1983 has been a major force in protecting the individual from countless abuses by the city, county, and state. We have become a more civilized society because of the protections it affords those under police arrest or confined to penal institutions. Thanks to section 1983, and concurrent prison reforms, we no longer tolerate the degrading experiences portrayed in film classics such as Paul Muni’s powerful role as Burns in “I Was a Fugitive from…

Appellant is a prisoner proceeding in for-ma 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. § 1915 (d).

Appellant filed five pro se complaints alleging 42 U.S.C. § 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…

concurring:

I concur in Judge Schroeder’s opinion insofar as it reverses the district court’s dismissal of Hernandez’s claims based upon alleged deprivation of footwear, rape, and other physical abuse. Under the controlling precedent of this circuit, Noll v. Carlson, 809 F.2d 1446 (9th Cir.1987), unless it is “absolutely clear” that a pro se civil rights plaintiff’s complaint could not be amended to allege constitutional violations, the district court errs by dismissing the action without notifying the plaintiff of the complaint’s deficiencies and allowing him leave to amend. Id. at 1449 . Here, as in Noll , Hernandez amended his complaint, but did so without the benefit of a statement by the court notifying him of the deficiencies in his pleadings. Id. The magistrate’s recommendations to the district court, which erroneously concluded that Hernandez’s allegations were “wholly fanciful” because unlikely, did not serve as adequate notice of the complaint’s deficiencies under Noll . Thus, while I agree with Judge Aldisert that Hernandez’s various complaints failed to state claims upon which relief could be granted, see Aldisert, J., dissenting, reversal is required under Noll to…