# Walter Gordon v. William D. Leeke, Commissioner Joe Martin, Warden, Wayne Stephen Young v. George H. Collins, Warden

> Court of Appeals for the Fourth Circuit · May 2, 1978 · 574 F.2d 1147

URL: https://www.frixlaw.com/law-library/cases/9464753

## Case

- **Full name:** Walter GORDON, Appellant, v. William D. LEEKE, Commissioner; Joe Martin, Warden, Appellees; Wayne Stephen YOUNG, Appellant, v. George H. COLLINS, Warden, Et Al., Appellees
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** May 2, 1978
- **Citations:** 574 F.2d 1147
- **Precedential status:** Published
- **Opinion:** Dissent by Hall
- **Judges:** Winter, Butzner, Hall
- **Cited by:** 1,825 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Mallard v. United States Dist. Court for Southern Dist. of Iowa, 490 U.S. 296 (1989).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9464753

## How later opinions describe it (automated extraction)

- explaining that “a complaint, especially a pro se complaint, should not be dismissed summarily 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’ (internal quotation marks omitted)
- stating that summary judgment was inappropriate because, although the plaintiff's “claim for damages is against [a third party] and not the defendants he sued,” the third party “could have been made a defendant” with leave of the court
- holding that when a plaintiff pleads a claim that is theoretically colorable but fails to allege damages upon which relief can be granted against the named defendants, he should be granted leave to amend his complaint
- holding that pro se civil rights litigants should be permitted to amend their complaints even if their motion for leave to amend does not state how the amendment cures deficiencies in an earlier pleading
- reversing district court’s grant of summary judgment to defendant correctional officers where, “[f]rom the additional pleadings, affidavits and exhibits, it appear[ed] that [the plaintiff asserted] that he was brutalized . . . by fellow inmates, that the correctional officers …

## Opinion text

K. K. HALL, Circuit Judge,
dissenting:
I.
THE DISMISSALS
In the South Carolina case, while I believe that the district judge might better have advised Gordon to join Riley as a defendant and have given him leave to do so, I would nevertheless affirm the dismissals in each case because I believe on the record presented to it each district court properly held that the respective plaintiffs had failed to properly state any cause of action under respondeat superior against the named parties defendant. To me, Owens v. Oakes, 568 F.2d 355 (4 Cir. 1978) is controlling in both cases and should be followed. The suit against Superintendent Oakes was not different from the suits filed by Gordon and Young here.
However, to me, neither dismissal creates res judicata or collateral estoppel effects which would preclude either Gordon or Young, or both of them from reinstituting a different suit against the culpable parties whether known or unknown, yet identifiable in some manner by reasonable due diligence assuming their respective suits are not otherwise time-barred by the appropriate statute of limitations.
II.
THE DUTY TO ASSIST THE LITIGANT
At the outset of the opinion, the majority notes that these appeals present a unified question concerning “ . . . the duty of a district court to assist a pro se prisoner-litigant in presenting a claim under 42 U.S.C. § 1983” [Emphasis added]. When such a “duty” is confined to the particular facts presented in these appeals, my reading of the majority opinion concerning the “duty to assist” a litigant becomes, in reality, nothing more than a pragmatic application of the rule favoring liberality in the amendments to pleadings, and especially complaints, under Federal Rule of Civil Procedure 15(a) together with the broad construction to be given to the pleadings filed by a pro se prisoner litigant in civil actions as required by Haines v. Kerner, 404 U.S. 519 , 92 S.Ct. 594 , 30 L.Ed.2d 652 (1972).
The majority properly states and carefully indicates that a district court is not required to act as an advocate for a pro se litigant. I wholeheartedly concur with that express limitation placed upon the majority’s own holding. To me, the duty to “construe liberally” and perhaps “to advise” is the court’s. The duty to “present” and to “advocate” is that of the litigant or his attorney.
Such a limitation strikes a sound balance between advocacy and judicial impartiality. Neither Haines v. Kerner, supra, nor our decision in Burris v. State Department of Public Welfare of South Carolina, 491 F.2d 762 (4th Cir. 1974), nor our unpublished per curiam affirmance of Canty v. City of Richmond, Va. Police Dept., 383 F.Supp. 1396 (E.D.Va.1974), aff’d, 526 F.2d 587 (4th Cir. 1975), cert. denied, 423 U.S. 1062 , 96 S.Ct. 802 , 46 L.Ed.2d 654 (1976), created any duty upon a district court to “assist” a pro se litigant, as opposed to merely “advising” *1154 him as the majority notes. 1 Further, the district court in Canty, like the majority here, expressly disavowed any requirement that “ . . . the district courts [are] to assume the role of [an] advocate for the pro se plaintiff, . . . Id., at 383 F.Supp. 1399 -1400. This logically follows when Haines, supra, and Bounds v. Smith, 430 U.S. 817 , 97 S.Ct. 1491 , 52 L.Ed.2d 72 (1977), are read together.
In Bounds , the Supreme Court held that an incarcerated pro se litigant had a fundamental constitutional right of access to the courts through the access to an adequate law library or from the adequate legal assistance of persons trained in the law. The decision both in this court and in the Supreme Court was clearly in the disjunctive. Smith v. Bounds, 538 F.2d 541, 544 (4th Cir. 1975); Bounds v. Smith, 430 U.S. 817, 827 , 97 S.Ct. 1491, 1498 , 52 L.Ed.2d 72 (1977). Haines v. Kerner, supra, requires no more than when an individual litigant chooses to proceed pro se and utilizes his resources (now including legal references) to file pleadings, or other documents, a district court must construe them broadly. 404 U.S. 519, 520-521 , 92 S.Ct. 594 , 30 L.Ed.2d 652 . 2
III.
COUNSEL
Should a district court, at some juncture, believe that a case is “exceptional,” it is clearly empowered, in its discretion, to appoint counsel to assist the litigant in pursuing his or her respective civil rights claim. 28 U.S.C. § 1915 (d); Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975).
With the entry of counsel, all aspects of the underlying cause of action could be clarified, Loper v. Beto, 405 U.S. 473 , 476 at n. 2, 92 S.Ct. 1014 , 31 L.Ed.2d 374 (1972), and the proper parties could be brought before the court, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 389 at n. 2, 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971).
During the course of the litigation, should discovery become necessary, and hearings or a trial required later, 3 counsel will certainly be in a far better position to assist the litigant and the court than will the judge who chooses instead to struggle with *1155 an unlearned and sometimes barely literate prisoner. 4 Prevailing counsel could be awarded attorneys fees in appropriate circumstances under the Civil Rights Attorney Fee Awards Act of 1976, now codified as 42 U.S.C. § 1988 .
Finally, should individual counsel be unavailable for any reason, certain states, including South Carolina, now have or are developing programs for inmate counseling and legal representation in various areas of prison life including pro se civil rights suits. The Supreme Court has recognized the role counsel can play in assisting prisoners in properly pursuing their grievances, Bounds v. Smith, 430 U.S. 817 , 97 S.Ct. 1491, 1499-1500 , 52 L.Ed.2d 72, at nn. 19-20 , and the district courts may be able to draw from this source of attorneys when appropriate. 5
IV.
AMENDMENTS OF PRO SE FORMS
While it will not cure the problems presented in the cases now on appeal, district courts might want to consider amendments to the standard preprinted forms utilized by prisoners in pro se civil rights suits. Therein, on any cover page of instructions, or on the portion of the heading of the suit, underneath where the defendants are to be named, some language could be added in plain English such as the following:
You must name the people as defendants whom you contend hurt you or caused you harm in some way. For example, if you are assaulted by guards, their names must be stated if you know them, or in the alternative you must make reference to them in some way. If you cannot name them, say so, and state why.
In your complaint, you must state the facts (who, what, when, where and how) that support your contentions, not mere conclusions.
If you contend that the warden, or some other supervisory official or their subordinates caused you harm, you likewise must name them if known, or you must make reference to them in some way. If you cannot name them, say so and state why. As noted, in your complaint, you also must state the facts (who, what, when, where and how) that support your contentions not mere conclusions.
Note: In order for a supervisory official, or the warden to be liable for any harm you are claiming, you must allege and have some proof that that person either expressly or implicitly authorized the conduct which you contend harmed you, or have acquiesced in it in some way. 6
V.
CONCLUSION
These appeals do not present the ever-present problem of the patently frivolous or repetitive prisoners’ rights cases which tax *1156 an already overburdened court system. 7 My concern lies instead with the delicate procedural balance to be struck between the settled right of an indigent to proceed pro se in the courts, the duty of such a litigant to proceed by complying with certain of the basic rules of legal procedure and substantive law, and the role the court is to impartially play in monitoring such litigation throughout. 8 In striking that balance, no matter how well-intentioned a judge may be, once he assumes the role of an “advocate” for a pro se litigant, he or she will lose the respect of either the pro se prisoner litigant, or the defendants whom he has sued or both.
To the extent that a duty to “assist” can be read into the penumbra of the majority decision, I vigorously, and most respectfully dissent.
. In part III of the majority opinion, in the section devoted to the Maryland case, the court holds in part that:
. . . when [a pro se ] litigant has alleged a cause of action which may be meritorious against a person or persons unknown, the district court should afford him a reasonable opportunity to determine the correct person or persons against whom the claim is asserted, advise him how to proceed and direct or permit amendment of the pleadings to bring that person or persons before the court. * *
Emphasis added.
To the extent that the majority creates a duty upon the district courts to “direct” an amendment to the pleadings, I read the majority additionally to hold that if the litigant fails to comply with the court’s “directives,” embodied in an appropriate order, of which the litigant has notice, that the suit may be dismissed. See Rule 41(b), Federal Rules of Civil Procedure. Another alternative open to and currently utilized by some district courts in this Circuit is the conditional dismissal, subject to amendment of the defective pleading by the pro se litigant, upon pain of final dismissal for failure to cure the legal deficiency or shortcomings in his suit. I would likewise approve of this procedural vehicle for managing a pro se suit. See Recommended Procedures for Handling Prisoner Civil Rights Cases in Federal Courts, Federal Judicial Center, Tentative Report No. 2, May 20, 1977, at 55-8 (cited hereafter as “Tentative Report;” Covington v. Cole, 528 F.2d 1365, 1372-3 (5th Cir. 1976).
. Albeit in the context of pro se criminal representation, the Ninth Circuit has held that Haines was not a “[case] for all seasons” invoking a “duty to assist” an individual proceeding pro se. See United States v. Trapnell, 512 F.2d 10 (9th Cir. 1975).
. In the somewhat analogous field of federal and state habeas corpus proceedings, in which litigants frequently proceed pro se, counsel may be appointed to aid the litigant and the court in the discovery process and during evi-dentiary hearings which may be conducted. See Rules 6(a) and 8(c) of the Rules Governing Section 2254 [and separately the Section] 2255 Proceedings for the United States District Courts, 28 U.S.C.A. foil. §§ 2254, 2255 (effective Feb. 1, 1977). These rules pointedly demonstrate the sound discretion vested in the district courts to consider appointment of counsel when it will aid both the litigant and the court.
. Obviously, I do not urge wholesale appointment of counsel in all civil rights cases, nor do I urge relaxation of the standards set forth in Cook v. Bounds, supra. What 1 do recognize is that many pragmatic problems beset a district judge in the administration of a pro se case beyond simply allowing a prisoner to file and amend his suit. For example, the security problem in prisoner cases undoubtedly presents a problem, Cook v. Bounds, supra, 518 F.2d at 780 n. 1, which the appointment of counsel can help alleviate, United States v. Madden, 352 F.2d 792 , 793 at n. 1 (9th Cir. 1965). See also Ballard v. Spradley, 557 F.2d 476 (5th Cir. 1977).
. In South Carolina, pursuant to LEAA funding grants, now state funded, a clinic has been established which operates under the auspices of the South Carolina Law School. Preliminary findings indicate a dramatic statistical effect in the reduction of meritless prisoner cases, both post-conviction and under § 1983, and the clinic has undertaken the prosecution of at least one significant prisoners’ rights § 1983 suit. Six Month Narrative Report, Consortium of States to Furnish Legal Counsel to Prisoners, LEAA Grant 76-DF-99-0077, October 1, 1976 —March 31, 1977, Statistical Reports, South Carolina, p. 2.
. See Tentative Report at 43-55, and recommended forms, at 83-5; Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir. 1977).
. The district courts have, at their ready disposal, many procedural mechanisms to forestall the abuse of pro se suits. While not exhaustive, a listing of those procedural tools are set forth as follows: 28 U.S.C. § 1915 (d) (dismissal where action is frivolous or malicious); 28 U.S.C. § 1915 (a) and Graham v. Riddle, 554 F.2d 133 (4th Cir. 1977) (right to proceed in forma pauperis conditioned upon a showing of good cause, and upon payment of the filing fee); Sanders v. United States, 373 U.S. 1 , 83 S.Ct. 1068 , 10 L.Ed.2d 148 (1963) (successive claims ordinarily need not be reviewed); and Carroll v. Brown, 560 F.2d 1177 (4th Cir. 1977) (summary judgment).
. See e. g. Graham v. Riddle, supra 554 F.2d at 134 ; Caviness v. Somers, 235 F.2d 455, 456 (4th Cir. 1956); Fletcher v. Young, 222 F.2d 222, 224 (4th Cir. 1955).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9464753. Public record. Not legal advice.