Petition — Leeke v. Gordon

pupreme Court, U. S."\)

FILED

JUL S1 1978 |

IN THE |_MICHAEL RODAK, JR., CLERK_

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-180

WILLIAM D. LEEKE, CommissIONER OF THE SOUTH CAROLINA

DEPARTMENT OF CORRECTIONS, AND

J. R. MARTIN, WARDEN OF THE CENTRAL

CORRECTIONAL INSTITUTION,

Petitioners,

Vv

WALTER GORDON,

Respondent.

GEORGE H. COLLINS, WARDEN OF THE

MARYLAND PENITENTIARY,

Petitioner,

Vv

WAYNE STEPHEN YOUNG,

Respondent.

PETITION FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DANIEL R. McLeEop, FRANCIS B. BuRCH,

Attorney General of Attorney General of Maryland,

South Carolina,

EMMET H. Cuairr, Davin H. FELDMAN,

Deputy Attorney General, Assistant Attorney General,

Chief of Litigation,

KATHERINE W. HILL, DONALD R. STUTMAN,

Assistant Attorney General, KATHLEEN M. SWEENEY,

RosBertT A. ZARNOCH,

Assistant Attorneys General,

Hampton Office Bldg., 1400 One South Calvert Bldg.,

Columbia, South Carolina 29211, Baltimore, Maryland 21202,

Attorneys for Petitioners.

1 Ae TUS em Ue aie Sean oes et

The Daily Record Co., Baltimore, Md. 21202 eS (2!

TABLE OF CONTENTS

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EEE A RE RN

QUBSTIONS PIREGIEITED. ............000.<cecccesceesccccccocecsccess

CONSTITUTIONAL AND STATUTORY PROVISIONS

nn soseuunnees

REASONS FOR GRANTING THE WRIT:

I.

Il.

Il.

District court judges have no obligation

to give active assistance to a pro se

plaintiff in a prisoner civil rights case,

to act as his advocate, or to sua sponte

order the remedy of legal defects in the

ge

The lower court decision so invites

violation of judicial impartiality and so

violates the due process rights of named

or potential defendants as to warrant

exercise of this Court’s supervisory

OE En Se OO

Under the circumstances of these cases,

the lower courts violated no duty to

assist pro se civil rights litigants ........

ES EL ES a a

APPENDIX:

Opinion filed March 6, 1978 by United States

Court of Appeals for Fourth Circuit and

reported as Gordon v. Leeke, 574 F.2d

og eee eee

Order filed May 2, 1978 by United States

Court of Appeals denying rehearing en

EEE SS n-ne

la

ii

PAGE

Memorandum and order filed November 16,

1976 by United States District Court for

the District of Maryland dismissing the

Young Complaint .......c..cccccccccccccsscsesseseesoes 19a

Memorandum and order filed December 10,

1976 by United States District Court for

the District of Maryland denying mo-

tion to vacate judgment ..............ssecseseeees 2la

Order filed December 2, 1976 by United

States District Court for the District of

South Carolina dismissing the Gordon

OUI, | cicsecceylecsiateseselenseoveanseannanvssnseqondons 23a

TABLE OF CITATIONS

Cases

Bounds v. Smith, 430 U.S. 817 (1977) .........0.+. 9,10, 11

Burris v. State Dept. of Public Welfare, 491 F.2d

: §) Ye Re. ., Beau ean meee meee 11

Calversi v. United States, 348 U.S. 961 (1955) .. 12

Flores v. United States, 337 F. Supp. 45 (D.P.R.

OOD oicies schiselaciantecaecrietctaeilaahins te iideaeesicbenhatoeuiis 14

Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978) passim

Haines v. Kerner, 404 U.S. 519 (1972) ...........sscec00es 8,9,10

In re Murchison, 349 U.S. 133 (1955) .............008 12

Lawton v. Tarr, 327 F. Supp. 670 (E.D.N.C. 1971) 13

Nordmann v. National Hotel Co., 425 F.2d 1103

CD Cie. TI. oo iessevttiinsncesensticcanncbionieinstiianicneceeees 13

Owens v. Oakes, 568 F.2d 355 (4th Cir. 1978) .. 11

Pfizer, Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972) 12

Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) 11

Snyder v. Massachusetts, 291 U.S. 97 (19364) .... 13

PAGE

United States v. Trapnell, 512 F.2d 10 (9th Cir.

2 PENN EERE RACAL SE EP eee ETON foo Ser SET 10

Wiggins v. Anderson, 386 F. Supp. 369 (E.D.

PRI NI: seid bn catiatienipaia re ia ci 14

Constitutions, Statutes and Rules

United States Constitution:

ii, 3, 12,14

United States Code:

Title 28—

RE EEREEN Aenea PY SAS Nat te 13

SN cD 2

NING IID clic sinexsncdctsobsacosdscAdcchtacecninces 2

Title 42—

| __ LeRE RAE ee EO 4,6,8 —

Rules:

Sari: ME TRIM Aacocdsccbacestacaciscccubstidtiesdnccusontehest 2

SSI SERRR sree ote Per 1

Ue TEs PE TD ieitnticacheanhl piesa tea cescassalind 5

PE Tai SR MI eneitiallerictcitnatihccsnitliasiatcetnien es, 5

Miscellaneous

Code of Judicial Conduct, Canon 2.A (1972) ..... 13

a ae

In THE

Supreme Court of the United States

OcTOBER TERM, 1978

No.

WILLIAM D. LEEKE, CommissiONER OF THE SOUTH CAROLINA

DEPARTMENT OF CORRECTIONS, AND

J. R. MARTIN, WARDEN OF THE CENTRAL

CORRECTIONAL INSTITUTION,

Petitioners,

v

WALTER GORDON,

Respondent.

GEORGE H. COLLINS, WARDEN OF THE

MARYLAND PENITENTIARY,

Petitioner,

v

WAYNE STEPHEN YOUNG,

Respondent.

PETITION FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioners, William D. Leeke, Commissioner of the

South Carolina Department of Corrections, J. R.

Martin, Warden of the Central Correction Institution, and

George H. Collins, Warden of the Maryland Peniten-

tiary, pursuant to Rule 23.5 of this Court, pray that

writs of certiorari issue to review the judgments entered

in these cases by the United States Court of Appeals for

the Fourth Circuit.

2

OPINIONS BELOW

The unreported order filed by the United States

District Court for the District of South Carolina on

December 2, 1976, dismissing respondent Gordon’s

complaint appears in the appendix to this peti-

tion (A. 23a), as does the unreported memorandum

and order of November 16, 1976, of the United States

District Court for the District of Maryland dismissing

respondent Young’s complaint (A. 19a). The memoran-

dum and order of the United States District Court for

the District of Maryland denying respondent Young’s

timely motion to vacate judgment was filed on De-

cember 10, 1976 (A. 21a).

The majority and dissenting opinions of the United

States Court of Appeals for the Fourth Circuit in these

consolidated cases were filed on March 6, 1978, and

reported as Gordon v. Leeke, 574 F.2d 1147 (4th Cir.

1978) (A. la). The final order of the court of appeals in

response to a timely petition for rehearing and

suggestion for rehearing en banc, failing to grant

rehearing en banc by an equally divided court, was filed

on May 2, 1978, and is unreported (A. 18a).

JURISDICTION

The original judgment of the court of appeals was

entered on March 6, 1978. A timely petition for

rehearing and suggestion for rehearing en banc was

originally denied on April 21, 1978; however, that order

was vacated by the court of appeals sua sponte on May

2, 1978, on which date a new order denying rehearing

en banc by an equally divided court was entered.

Thus, in accordance with 28 U.S.C. § 2101(c) and Rule

22.3 of this Court, the petition ie due to be and is being

filed on or before July 31, 1978.

The jurisdiction of the Court is invoked under 28

U.S.C. § 1254(1).

eee

aS

3

QUESTIONS PRESENTED

I. Do district courts commit reversible error if they

fail to give active assistance to pro se prisoner plaintiffs

in the prosecution of their civil rights cases, to advocate

legal positions not articulated or pressed by the

plaintiffs, or, at their own instance, to remedy legal

defects in the plaintiffs’ cases?

II. Does the imposition of these duties on district

courts by the court of appeals violate the principle of ~

judicial neutrality, violate the due process rights of

named or potential defendants who will face personal

liability for any judgment, or otherwise so far depart

from the accepted and usual course of judicial proceed-

ings as to call for the exercise of this Court’s supervi-

sory powers?

III. If these duties are properly imposed, was it

reversible error under the circumstances of the present

cases for the district courts to dismiss the prisoners’

complaints?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment V:

No person shall be held to answer for a capital,

or otherwise infamous crime unless on a present-

ment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for

the same offense to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be taken

for public use, without just compensation.

United States Code (1970 ed.; vol. 7, p. 7495), Title

28, Section 453:

Each justice or judge of the United States shall

take the following oath or affirmation before

4

performing the duties of his office: ‘‘f,

, do solemnly swear

(or affirm) that I will administer justice without

respect to persons, and do equal right to the poor

and to the rich, and that I will faithfully and

impartially discharge and perform all the duties

incumbent upon me as according to

the best of my abilities and understanding,

agreeably to the Constitution and laws of the

United States. So help me God.”

STATEMENT OF THE CASES

The South Carolina Case

In April 1976 respondent Walter Gordon, a prisoner at

Central Correctional Institution in Columbia, South

Carolina, brought suit in forma pauperis in the United

States District Court for the District of South Carolina

against William D. Leeke, Commissioner of the Depart-

ment of Corrections, and J. R. Martin, Warden of the

institution where Gordon was confined. Claiming

federal jurisdiction under 42 U.S.C. §1983, Gordon

alleged that he had been sexually assaulted, robbed,

and beaten by other inmates in the presence of two

correctional officers not named as defendants in his

suit. Gordon sought an order that the administration at

the institution be improved, that these petitioners be

fined, and that he be awarded money damages.

Commissioner Leeke and Warden Martin filed an

answer asserting among other things that they had no

knowledge of the assault-robbery and that the doctrine

of respondeat superior would not make them liable

under section 1983 for the alleged actions of unnamed

correctional officers.

In June 1976 Gordon filed a supplemental pleading

seeking to respond to the legal objections raised by

these petitioners; he made no attempt at that time or

later, however, to initiate discovery to determine the

names of the correctional officers who purportedly

5

witnessed his assault. Subsequently, on July 9, 1976,

District Court Judge Robert W. Hemphill issued an

order which stated in part:

It is impossible for the Court to determine on the

basis of the existing pleadings whether plaintiff

Gordon has stated a colorable claim against the

two defendants named. The complaint is not

dismissible under Rule 12, or subject to summary

judgment under Rule 56, based solely on the

pleadings and the affidavit of defendant Martin.

However, the Court is unwilling to set a case such

as this for hearing or trial without exhausting a

reasonable effort to overcome deficiencies in the

pleadings which tend to obscure the question of

whether plaintiff has state¢c a claim of constitu-

tional import. For this reason, defendants will be

required to supplement the answer filed in this

cause.

On August 6 Commissioner Leeke and Warden

Martin filed a supplemental answer along with docu-

mentary evidence showing that they “ha[d] never had

any knowledge of the alleged incident and ha{d] in no

way acquiesced in those incidents.” Later, Gordon filed

another pleading along with an affidavit attesting only

to the occurrence of the assault in the presence of the

unnamed officers but not to any involvement on the

part of the defendants he had named. Two and one-half

weeks later, on August 24, Judge Hemphill, “out of an

abundance of precaution,” ordered the filing of addi-

tional affidavits by both sides, although he lamented

the absence of any demonstrable evidence of Gordon’s

claim. Subsequently, Gordon filed an affidavit of

another inmate identifying a correctional officer named

Riley as one of the persons who allegedly observed the

assault, and Commissioner Leeke and Warden Martin

filed an affidavit of Correctional Officer Riley and other

records which established that he was off duty on the

date of the incident.

6

Following the filing of these affidavits and additional

pleadings, Judge Hemphill, on December 2, 1976,

dismissed Gordon’s complaint in a four-page opinion

which stated in part:

As stated in a previous Order, this case, at best,

is nebulous. However, dismissal is necessary for

another reason that is more compelling. The

plaintiff seeks damages in this suit from two

officials of the Department of Corrections who are

not subject to liability for damages here under the

doctrine of respondeat superior. The personal

involvement of defendants Leeke and Martin is not

shown in any of the pleadings, and they cannot be

held vicariously liable for the alleged acts of their

subordinates.

A. 25a-26a. On December 10 Gordon noted an appeal to

the United States Court of Appeals for the Fourth

Circuit. *

The Maryland Case

In October 1976 respondent Wayne Steven Young,

presumably pursuant to 42 U.S.C. § 1983, filed a pro se

“Complaint for Criminal Negligence and Grand Lar-

ceny” in the United States District Court for Maryland

seeking relief against “George H. Collins, et al.,

Warden, Maryland Penitentiary.” Proceeding in forma

pauperis, Young claimed that Warden Collins was

liable in damages for the loss of Young’s watch,

allegedly taken during a shakedown search of his cell.

The correctional official alleged to have taken the

watch was not named as a defendant, and he is not

identified in the record or known to petitioners. Young

sought both injunctive relief and damages. Shortly

thereafter, the warden moved to dismiss, among other

1 The complaint was served only on Warden Collins and

did not name those (or indicate that there were persons

"hose names were unknown) intended to be included in “et

al.”

7

reasons because Young had failed “to include the

proper and necessary defendants to this suit.”

Young filed no response to the motion and neither

amended his complaint nor made an attempt to initiate

discovery to determine the individual responsible for

the alleged theft. On November 16, 1976, District Court

Judge Herbert F. Murray filed a memorandum and

order dismissing respondent’s action, stating that

“Nowhere in plaintiff's complaint does he allege that.

George Collins even knew that the shakedown was

taking place, let alone that he was involved in the theft

of the watch” (A. 19a-20a). Subsequently, persisting in

his notion that the warden could somehow be held

responsible for the alleged grievance, Young moved to

vacate the order of November 16 and for time to amend

his complaint so that he could “elaborate on the

culpability of the Defendant.” He did not proffer what if

any involvement he could possibly show on the part of

Warden Collins. On December 10, 1976, Judge Murray

denied the motion stating:

Nowhere in the entire complaint does plaintiff

allege one fact with reference to Mr. Collins.

Further, plaintiff does not allege, in his motion to

vacate, any facts to show that Mr. Collins was

personally involved in the incident, nor any new

facts of which he was not aware at the time he filed

his original complaint.

A. 21la-22a. On December 28, 1976, Young noted an ap-

peal to the Fourth Circuit.

In neither the South Carolina nor the Maryland case

were the prisoners precluded from proceeding against

the correctional officers purportedly responsible for

their grievances and to this day neither is barred from

bringing such an action; and, despite obvious notice of

the defects in their original action, neither respondent

has chosen the course of filing suit against these

subordinates.

8

Opinion of the Court of Appeals

Consolidating the Gordon and Young cases, the court

of appeals stated in its opinion that both appeals —

involved “‘the duty of a district court to assist a pro se

prisoner-litigant in presenting a claim under 42 U.S.C.

§ 1983” (A. 2a). Relying upon Haines v. Kerner, 404 U.S.

519 (1972), and a host of decisions of the Fourth Circuit,

the two-judge majority held that although dismissals in

both the Maryland and South Carolina cases were

warranted under applicable law, the lower courts had

committed reversible error. Specifically, the majority

opinion authored by Judge Winter concluded that:

1. Judge Hemphill should have advised Gordon that

he could have joined Officer Riley as a defendant and

sua sponte given him leave to amend; and

2. Judge Murray sua sponte should have given

Young the opportunity to discover from the warden the

identity of his searchers and then joined them as

defendants.

In explaining its conclusion, the majority stated:

A district court is not required to act as an

advocate for a pro se litigant; but when such a

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 amend-

ment of the pleadings to bring that person or

persons before the court.

A. 10a. Nowhere in its opinion did the majority cite to

any provision of the Constitution or laws of the United

States as authority for reversing the distfict courts (and

petitioners believe there is no such authority).

In a vigorous dissent Judge Hall argued that the

majority’s “duty to assist” was in reality judicial

9

assumption of the role of an advocate. Further, he

contended that the majority’s action found no support

in Haines v. Kerner, 404 U.S. 517 (1972), or Bounds v.

Smith, 430 U.S. 817 (1977), or in any other decision.

After proffering a number of administrative and

practical alternatives to judicial intrusion into the

adversary process, Judge Hall observed that “once [a

judge] 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” (A. 17a). }

A timely petition for rehearing and suggestion for

rehearing en banc was finally denied by the court of

appeals on May 2, 1978. Three of the six judges in

regular active service on the court dissented from the

denial of rehearing en banc.?

REASONS FOR GRANTING THE WRIT

L. :

DISTRICT COURT JUDGES HAVE NO OBLIGATION TO GIVE

ACTIVE ASSISTANCE TO A PRO SE PLAINTIFF IN A PRISONER

CIVIL RIGHTS CASE, TO ACT AS HIS ADVOCATE, OR TO SUA

SPONTE ORDER THE REMEDY OF LEGAL DEFECTS IN THE

PRISONER’S COMPLAINT.

The court of appeals decision of which review is

sought forces a district court judge to serve two masters:

justice and the litigative underdog. Petitioners submit

that whether this unique obligation is termed a duty to

assist or a duty to advocate, it finds no support in the

decisions of this Court.

In Haines v. Kerner, 404 U.S. 519 (1972), this Court

held that the allegations of a prisoner’s pro se

complaint in an action under 42 U.S.C. § 1983 should be

held to “less stringent standards” than formal plead-

ings drafted by a lawyer, 404 U.S. at 654, and that the

2 The seventh regular seat on the court of appeals has been

vacant since the unfortunate death of the Honorable J.

Braxton Craven, Jr., on May 3, 1977.

10

plaintiff should be given the opportunity to offer proof

of possibly meritorious though inartfully pleaded

allegations. Jd. Although Haines counseled judicial

sensitivity to the situation of the pro se prisoner civil

rights litigant, it did not impose on district court judges

a duty to assist such parties. And, contrary to the

Fourth Circuit, the Ninth Circuit has so held (United

States v. Trapnell, 512 F.2d 10, 12 (9th Cir. 1975)), as

noted by the dissent of Judge Hall to the lower court

opinion (A. 14a n.2). Moreover, although Haines urged

trial judges to pay attention to the facts of prisoner civil

rights cases, it did not authorize them to ignore the law.

In Bounds v. Smith, 430 U.S. 817 (1977), this Court

held that the Constitution required prison authorities to

assist inmates in the preparation and filing of meaning-

ful legal papers by providing them with adequate law

libraries or assistance from persons trained in the law.

In so concluding, this Court observed that these reforms

were necessary to enable a prisoner to research such

issues as “proper parties plaintiff and defendant.” 430

U.S. at 825. Although cataloging a long list of devices

to ensure meaningful access to the courts by prisoners,

430 U.S. at 821-25, this Court at no point indicated that

the duty to assist and advocate fell upon anyone other

than prison authorities and their charges. In fact, this

Court said that:

If a lawyer must perform such preliminary re-

search, it is no less vital for a pro se prisoner.

Indeed, despite the “less stringent standards” by

which a pro se pleading is judged, Haines uv.

Kerner, 404 U.S. 519, 520, (1972), it is often more

important that a prisoner complaint set forth a

nonfrivolous claim meeting all procedural prerequi-

sites, since the court may pass on the complaint’s

sufficiency before allowing filing in forma pauperis

and may dismiss the case if it is deemed frivolous.

430 U.S. at 825-26.

1}

Bounds v. Smith wisely refrained from placing on

courts the duty of assistance to pro se prisoner litigants.

This decision implicitly recognized that just as a trial

judge cannot serve the dual function of criminal

prosecutor and judge (see In re Murchison, 349 U.S. 133

(1955)), he cannot both prosecute and judge a prisoner’s

civil rights case.

More than just case law, however, counsels this Court

to end the Fourth Circuit’s dangerous experiment. First,

as the Fourth Circuit decisions which have lead to the

present cases demonstrate, there are no limits to this so-

called judicial “duty to assist” the underdog. And that

court has applied variations of the rule in cases where

the plaintiff is represented by counsel (Burris v. State

Dept. of Public Welfare, 419 F.2d 762 (4th Cir. 1974)),

where no prisoner is involved (same), and in matters of

procedure (Roseboro v. Garrison, 528 F.2d 309 (4th Cir.

1975)), as well as jurisdiction (Burris).®

Second, the doctrine may impose serious hardships

on defendants in such actions. Here, the Fourth Circuit

conceded that petitioners had a legal right to be

released from respondents’ suits. Nevertheless, unless

this Court acts, they will be kept in the cases through

protracted discovery proceedings to reach real or

imagined malefactors, and the result will perhaps

further clutter the already heavy federal court dockets.

Finally, respondents and other plaintiffs derive little

meaningful benefit from such a rule. As Judge Hall

noted in dissent:

[Neither dismissal creates res judicata or collateral

estoppel effects which would preclude either Gordon

3 As the evenly divided decision on rehearing en banc

indicates, there is a deep split in the circuit on the proper role

of a district court judge in a pro se civil rights case. See

Owens v. Oakes, 568 F.2d 355 (4th Cir. 1978), where a

different panel of judges upheld the dismissal of a prisoner’s

civil rights complaint on precisely the same kind of facts as

were alleged in the present cases.

12

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.

A. lla.

II.

THE LOWER COURT DECISION SO INVITES VIOLATION OF

JUDICIAL IMPARTIALITY AND SO VIOLATES THE DUE PRO-

CESS RIGHTS OF NAMED OR POTENTIAL DEFENDANTS AS TO

WARRANT EXERCISE OF THIS COURT’S SUPERVISORY POW-

ERS.

In Calversi v. United States, 348 U.S. 961 (1955), out

of concern for the appearance of judicial impartiality,

this Court exercised its supervisory power to reverse

and remand a criminal case for retrial before a different

judge. What was simply an isolated aberration cor-

rected in Calversi is now virtually a rule of law in the

Fourth Circuit. District court judges must keep dead

cases alive: retain defendants as parties who legally

should be dismissed from the case. They must order

discovery about unnamed persons, who are potential

defendants who will face personal liability for money

judgments, even when no one asks for it. They must

compel joinder of parties whom plaintiffs have no

interest in joining. They must grant leave to amend sua

sponte. Such conduct is the antithesis of judicial

neutrality and raises serious due process questions

relating to the rights of named and potential defend-

ants.

Impartiality is the epitome of the judicial function.

From Socrates’s definition of the proper qualities of

every judge,‘ to the Code of Judicial Conduct, to a

* To hear courteously; to answer wisely; to consider

soberly; and to decide impartially. See Pfizer, Inc. v. Lord,

456 F.2d 532, 533 (8th Cir. 1972).

5 “A judge should respect and comply with the law and

should conduct himself at all times in a manner that

13

federal judge’s oath of office,® this rule has remained

inviolate. And countless are the tangible expressions of

its dictates:

The concept of fairness must not be strained till it

is narrowed to a filament. We are to keep the

balance true.

Snyder v. Massachusetts, 291 U.S. 97, 122 (1934)

(Cardozo, J.).

* * *

It is well-established that the conduct of a trial

judge must be measured by a standard of fairness

and impartiality. He is not a mere moderator,

however; and his duty is to conduct an orderly trial

and to make certain, as far as possible, that there

is no misunderstanding of the testimony. As this

Court has noted, the trial judge “cannot be forced

to occupy a passive position as moderator between

the disputants.” In participating in the trial, the

trial judge, however, may not give the jury his

views upon ultimate issues of fact, nor take over

the argument of one of the parties... .

Nordmann v. National Hotel Co., 425 F.2d 1103, 1109

(5th Cir. 1970) (citations omitted).

* * *

A Judge should no more reach out for a case than a

lawyer should be allowed to shop for a forum.

Lawton v. Tarr, 327 F. Supp. 670, 674 (E.D.N.C. 1971)

(Craven, J.).

* * *

promotes public confidence in the integrity and impartiality

of the judiciary.” Canon 2A of the Code of Judicial Conduct

adopted by the House of Delegates of the American Bar

Association on August 16, 1972.

6 This oath is contained in 28 U.S.C. § 453:

Each justice or judge of the United States shall take the

following oath or affirmation before performing the

duties of his office: “I, , do

solemnly swear (or affirm) that I will administer justice

without respect to persons, and do equal right to the poor

and to the rich, and that I will faithfully and impartially

14

It is not the duty or the responsibility of the trial

judge to give legal advice to an accused or to any

party in any federal proceeding.

Flores v. United States, 337 F. Supp. 45, 48 (D.P.R.

1971).

~ « nd

The function of a judge [in a prisoner’s civil rights

case] is to determine controversies between lit-

igants, and he is not an adjunct or adviser, or an

investigating instrumentality, of other agencies of

government.

Wiggins v. Anderson, 386 F. Supp. 369, 371 (E.D. Okla.

1974).

These same concerns are forcefully reflected in Judge

Hall’s dissent:

My concern lies . . . 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. 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.

A. 16a-17a. In summary, the novel judicial duty created

by the Fourth Circuit to assist plaintiffs and advocate

their cause, if allowed to stand, will abrogate the long-

standing duty of judicial impartiality and profoundly

affect the due process rights of named and potential

defendants, all of whom face possible personal liability

for money judgments.

discharge and perform all the duties incumbent upon me

as according to the best of my abilities

and understanding, agreeably to the Constituti

laws of the United States. So help me God.” vba

15

III.

UNDER THE CIRCUMSTANCES OF THESE CASES, THE

LOWER COURTS VIOLATED NO DUTY TO ASSIST

PRO SE CIVIL RIGHTS LITIGANTS.

The court of appeals did not hold that any rights of

respondents had been violated by the decisions of the

district courts. In fact, the appellate court upheld the

legal correctness of the trial judges’ determinations that

petitioners were not liable. Nevertheless, the Fourth

Circuit held that the district court judges first should

have advised respondents of their right to join certain

persons in the action and that the judges should have

facilitated that joinder actively.

The records in both the South Carolina and Maryland

cases demonstrate that such notice had been effectively

given, however, and disregarded by respondents. The

pleadings of Gordon and Young obviously indicated

their familiarity with legal procedure. Early in the

proceedings, petitioners’ pleadings highlighted the non-

involvement of named parties. In the Maryland case

non-joinder of necessary parties was specifically as-

serted. In the South Carolina case Judge Hemphill in

his first two opinions deliberately and repeatedly

focused on the problem. Respondents either had

knowledge of their names or were not without facilities

of their own to discover those who purportedly caused

their grievances. Discovery in accordance with the

Federal Rules of Civil Procedure, and by other mecha-

nisms such as state public information laws, was

available to them but not employed. Nevertheless, they

made no attempt to sue the proper parties out of an

erroneous fixation that their wardens must be held

responsible and made to pay.

Finally, respondents have suffered no injury from the

concededly correct dismissal of their actions. As noted

earlier, they still may be able to sue the proper

defendants. In short, there was no violation of the

16

Fourth Circuit’s novel duty to assist pro se litigants and

any violation, if it occurred, amounted to no more than

damnum absque injuria.

CONCLUSION

In summary, petitioners urge review of the court of

appeals judgments in order to rectify the balance they

now tip in favor of judicial partiality and inefficiency.

Prisoner civil rights cases that should be concluded

must be concluded.

Petitioners respectfully urge this Court to grant writs

of certiorari to the United States Court of Appeals for

the Fourth Circuit to review and ultimately reverse

judgments which, if allowed to stand, can only have a

deleterious effect on the administration of justice.

Respectfully submitted,

DANIEL R. McLeop, FRANCIS B. BuRCH,

Attorney General of Attorney General of Maryland,

South Carolina,

EMMET H. CLair, Davip H. FELDMAN,

Deputy Attorney General, Assistant Attorney General,

Chief of Litigation,

KATHERINE W. HILL, DONALD R. STUTMAN,

Assistant Attorney General, KATHLEEN M. SWEENEY,

Rosert A. ZARNOCH,

Assistant Attorneys General,

Hampton Office Bldg., 1400 One South Calvert Bldg.,

Columbia, South Carolina 29211, Baltimore, Maryland 21202,

(803) 758-3970, (301) 383-3737.

Attorneys for Petitioners.

la

APPENDIX

United States Court of Appeals

For The Fourth Circuit

No. 77-1137

Walter Gordon,

Appellant,

v.

William D. Leeke, Commissioner;

Joe Martin, Warden,

Appellees.

Appeal from the United: States District Court for the

District of South Carolina, at Columbice Robert W.

Hemphill, District Judge.

No. 77-1194

Wayne Stephen Young,

Appellant,

V

George H. Collins, Warden, et al.,

Appellees.

Appeal from the United States District Court for the

District of Maryland, at Baltimore. Herbert F.

Murray, District Judge.

Argued November 10, 1977 Decided March 6, 1978

Before Winter, Butzner and Hall, Circuit Judges.

2a

George Wm. Warren, IV, for Appellants in 77-1137 and

77-1194; Emmet H. Clair, Senior Assistant Attorney

General (Daniel R. McLeod, Attorney General of

South Carolina, Katherine W. Hill, Assistant Attor-

ney General; Francis B. Burch, Attorney General of

Maryland, and Kathleen M. Sweeney, Assistant

Attorney General, on brief) for Appellees in 77-1137

and 77-1194.

WINTER, Circuit Judge:

Because these appeals both concern the duty of a

district court to assist a pro se prisoner-litigant in pre-

senting a claim under 42 U.S.C. § 1983, we consolidated

them for briefing and argument, and we decide them

together. In No. 77-1137 (the South Carolina case), the

plaintiff sought injunctive relief and money damages

for alleged mistreatment by fellow inmates, acquiesced

in by prison guards. He sued the warden and a

commissioner of the Department of Correction. The

district court required the defendants to supplement

their pleadings and permitted plaintiff to supplement

his, in an effort to determine if plaintiff had a

meritorious cause of action. On the expanded pleadings

and affidavits, the district court granted summary

judgment for the defendants. In No. 77-1194 (the

Maryland case), plaintiff sued the warden for damages

for the loss of a watch allegedly stolen during a

shakedown search. The district court permitted the

filing of plaintiff's pro se complaint, but granted the

defendants’ motion to dismiss under Rule 12(b)(6), F. R.

Civ. P. It denied a subsequent motion for leave to

amend.

We reverse in both cases.

I.

The South Carolina Case

Walter Gordon, convicted of a felony by a South

Carolina state court, was placed under psychiatric

observation in Cell Block Two at the Central Correc-

3a

tional Institution at Columbia, South Carolina, shortly

after he began service of his-sentence. On January 29,

1976, he was removed to Cell Block One, where he

became part of the general population of the prison. On

February 3, 1976, he was transferred to Kirkland

Correctional Institution.

According to Gordon, he was subjected to a brutal

beating, robbery and homosexual rape by four fellow

inmates sometime between January 29 and February 3.

He claims that the several attacks were witnessed by

two correctional officers who did nothing to prevent or

halt them. He further alleges that on February 1, 1976,

he requested the Deputy Warden to provide him

protection but that the Deputy Warden failed to act

upon his request except.to return him to the psychiatric

cell block.

In addition, Gordon alleged that he was thereafter

duped by another inmate, a certain Thomas Massey,

into causing his family to send $50.00 to Massey who

would prepare a writ that would “guarantee” Gordon’s

release.

Gordon’s pro se complaint was filed against William

D. Leeke, a commissioner of the South Carolina

Department of Correction, and J. R. Martin, Warden of

the Central Correctional Institution. As relief, Gordon

sought an order that the administration at Central

Correctional Institution be corrected, that defendants

be fined, and that he be awarded money damages.

The complaint was hopelessly inadequate to allege a

cause of action on which relief could be granted. Among

other things, it failed to state either the date of the

alleged attack, whether it occurred in Cell Block One or

Two, and the identity of either the attacking inmates or

the acquiescent guards. The defendants answered,

denying knowledge of any alleged abuse of Gordon, but

conceding that the records disclosed that Massey

received $50.00 from “J. H. Gordon.” They raised

certain legal defenses, pleaded a lack of knowledge of

many of the essential facts, and moved to dismiss the

Qa

4a

complaint under Rule 12(b)(6). In a reply to this answer,

Gordon conceded that Massey had refunded the $50.00

and this phase of Gordon’s claims was effectively

eliminated from the case.

The district court ruled that, with respect to the

alleged assault, it could not dismiss the complaint

under Rule 12(b)(6), nor could it grant summary

judgment for defendants. At the same time, it ruled that

it would not set the case for trial until the pleadings had

been amplified so that it could determine if Gordon had

alleged at least a colorable claim. Accordingly, the

district court required defendants to supply additional

information and it afforded Gordon the opportunity to

respond thereto.

As a result of defendant’s supplemental answer, with

affidavits and exhibits thereto, and Gordon’s verified

responses, including an affidavit from another inmate,

some of the details of Gordon’s alleged cause of action

emerged. In another interim ruling, the district court

recited (1) that Gordon’s statements fixed the date on

which the assault on him had occurred as January 29,

1976; (2) that the affidavit of another inmate, Joe

Harris, stated that he saw (“{iJn January, 1976, I don’t

remember the exact date,’’) four black inmates pull

Gordon into a cell and beat him while two black officers

stood by and watched without intervening; and (3) that

Gordon, whose face was badly beaten, said about an

hour later that he had been raped and robbed but made

no claim to the prison authorities that he had been

assaulted until April 7, 1976, although he had

conversed with at least one official after the alleged

incident. The district court stated its belief that

Gordon’s case was “nebulous, at best,” and that his

claim of rape was highly suspect because he did not

inform the prison authorities of it until April 7, 1976.

Nonetheless, the district court directed Gordon to

submit an affidavit identifying any persons whom he

claimed raped him arid directed defendants to submit

an affidavit from the officer in charge of the cell block

5a

in which Gordon was incarcerated on January 29, 1976

as to any incident of the type which Gordon alleged.

In response, Gordon filed three affidavits. In the first,

which was made by him, he noted that he had

previously declined to name his attackers because of

fears for his life; he then stated that, while he did not

know the names of three of them, the name of the

fourth was Bernard Brown. The second affidavit was

that of Joe Harris who said that one of the guards who.

had witnessed the attack was Officer Reilly [sic]

and that Harris could identify him by reason of

previous contacts between the two of them. The third

affidavit was that of David Johnson, another inmate,

who said that Gordon had told him on the day of the

incident that Gordon refused medical treatment for his

face because he feared that disclosure of the incident

might endanger his life.

In response, defendants filed a second and third

supplemental answer supported by affidavits and

prison records. Succinctly stated, these pleadings

asserted that Assistant Correctional Supervisor M.

Woodward, Jr., was in charge of the cell block in which

Gordon was confined on the date of the alleged

incident, but that Woodward had no knowledge, nor did

he receive any report, of any attack on Gordon. Neville

Riley, the correctional officer named by Harris, made

an affidavit that he was the only person of that name

employed as a correctional officer at the Central

Correctional Institution but that he was not on duty on

January 29, 1976 and was never aware that Gordon had

been assaulted or in any way physically abused. The

attendance records of the institution showing that Riley

did not work on January 29 were attached.

On the pleadings, expanded as recited above, the

district court made a final ruling. On its analysis of the

facts, it candidly disclosed that “the Court is not fully

persuaded that some type of assault did not occur.”

Notwithstanding, the court dismissed the complaint on

the grounds that, factually, Gordon had alleged no

6a

cause of action against Leeke and Martin and, legally,

they could not be held liable in an action under § 1983

for the misconduct of their subordinates under the

doctrine of respondant superior.

The Maryland Case

Wayne Stephen Young sued George H. Collins,

Warden of the Maryland Penitentiary, under § 1983 for

money damages and injunctive relief. Young alleged

that he was removed from his cell in the West Wing of

the Penitentiary, as were all other prisoners in the West

Wing, for a shakedown search conducted on September

10, 1976, and that during the search only corrective

officers were present in the cell. When he was returned

to his cell, he discovered that his watch and metal

watchband had been stolen.

The defendant moved under Rule 12(b)(6) to dismiss

the complaint, and the district court granted the

motion. It noted that Young had alleged that “only

corrections officers were in the wing at the time;” but it

concluded that since Young failed to allege that the

warden ever. knew that the search was taking place, let

alone that he was involved in the theft, a claim for

relief was not stated since the doctrine of respondeat

superior was inapplicable. When Young thereafter

moved to strike the order of dismissal to permit him “to

prepare and submit an amended complaint establishing

proper grounds for proceeding in the prosecution of this

case,” the district court denied the motion. It filed

another memorandum justifying its denial on the

ground that Young had not alleged, either in his

original complaint or in his motion, any facts to show

that the warden was personally involved, nor did

Young allege any facts not set forth in the original

complaint.

II.

It is now established doctrine that pleadings should

not be scrutinized with such technical nicety that a

meritorious claim should be defeated, and even if the

7a

claim is insufficient in substance, it may be amended to

achieve justice. Rice v. Olson, 324 U.S. 786, 791-92

(1945); Holliday v. Johnston, 313 U.S. 342, 350 (1941). In

one of the latest expressions on the subject, Haines v.

Kerner, 404 U.S. 519, 521 (1972), it was said 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,” quoting

from Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Our own decisions reflect these views. In Burris v.

State Department of Public Welfare of S.C., 491 F.2d

762 (4 Cir. 1974), we held that when plaintiff sued the

South Carolina Department of Public Welfare alleging

that his application for welfare was denied without a

hearing but failing to allege a jurisdictional amount or

other basis for federal jurisdiction, the district court

should have apprised his counsel of the availability of

42 US.C. §1983 and 28 U.S.C. §1343(3). We also

recognized that the named defendant was probably not

a “person” within the meaning of §1983, but we

directed the district court to consider the case on its

merits “assuming that the complaint is amended to

come within these statutes.” 491 F.2d at 763. To like

effect is Johnson v. Mueller, 415 F.2d 354 (4 Cir. 1969).

In Roseboro v. Garrison, 528 F.2d 309 (4 Cir. 1975), we

held that a district court must advise a pro se litigant of

his right under the summary judgment rule to file

opposing affidavits to defeat a defendant’s motion for

summary judgment.

The conclusions to be drawn from these decision of

the Supreme Court and our own, especially Burris, were

well stated by the district court in Canty v. City of

Richmond, Va., Police Dept., 383 F.S. 1396 (E.D. Va.

1974), affirmed, 526 F.2d 587 (4 Cir. 1975), cert. denied,

423 U.S. 1062 (1976):

[T]he Fourth Circuit sites the position that its

district courts must be especially solicitous of civil

rights plaintiffs.

* * * « * *

8a

This solicitude for a civil rights plaintiff with

counsel must be heightened when a civil rights

plaintiff appears pro se. In the great run of pro se

cases, the issues are faintly articulated and often

only dimly perceived. There is, therefore, a greater

burden and a correlative greater responsibility

upon the district court to insure that constitutional

deprivations are redressed and that justice is done.

So, although the Court of Appeals cannot mean

that it expects the district courts to assume the role

of advocate for the pro se plaintiff, radiations from

Burris strongly suggest that the district court must

examine the pro se complaint to see whether the

facts alleged, or the set of facts which the plaintiff

might be able to prove, could very well provide a

basis for recovery under any of the civil rights acts

or heads of jurisdiction in the federal arsenal for

redress of constitutional deprivations. Accordingly,

the Court in considering the defendants’ motion to

dismiss will not permit technical pleading require-

ments to defeat the vindication of any constitu-

tional rights which the plaintiff alleges, however

inartfully, to have been infringed. 383 F.S. at 1399-

1400.

III.

The South Carolina Case

In the South Carolina case, in accordance with the

principles discussed, the district court was altogether

correct in declining to dismiss Gordon’s complaint as

originally drafted. It was theoretically possible that

Gordon could prove thereunder a state of facts which

would entitle him to recover, although it was certain

that the precise basis for recovery was not alleged. By

the same token, the district court was correct in its

initial determination not to grant summary judgment.

What might be a meritorious claim on the part of a pro

se litigant unversed in the law should not be defeated

without affording the pleader a reasonable opportunity

to articulate his cause of action. We approve of the

district court’s efforts to obtain from Gordon and

defendants a full disclosure of the facts of the case so

a

9a

that the district court could make an informed judg-

ment on its merits.

Nevertheless, we reverse because we think the district

court did not fully appreciate the additional facts that it

obtained or recognize that these facts were disputed and

could not be resolved on motion for summary judgment.

From the additional pleadings, affidavits and exhibits,

it appears that Gordon is asserting that he was

brutalized on January 29, 1976 by fellow inmates, that

the correctional officers, Neville Riley and another,

were present and saw what was transpiring, but,

nevertheless, that Riley and the other unknown guard

declined to intervene and permitted the assault to

continue. In our view, Gordon has thus alleged a cause

of action under § 1983.

Of course, Gordon’s claim for damages is against

Riley and not the defendants he sued. Bursey v.

Weatherford, 528 F.2d 483, 488 n.7 (4 Cir. 1975).

Dismissal or summary judgment as to the warden and

the commissioner was proper.' But since the identity of

Riley, one of the correctional officers allegedly involved,

was finally established, the district court should have

advised Gordon that, pursuant to Rule 19(a), F. R. Civ.

P., Riley could have been made a defendant and given

Gordon leave to join him.

Summary judgment as to Riley would be inapprop-

riate on the present record. Gordon now claims that

Riley was one of the correctional officers present at the

January 29, 1976 attack and the allegation is supported

by the affidavit of Gordon’s fellow inmate, Joe Harris.

Of course, Riley has stated by affidavit that he was not

present and he has offered the institution’s attendance

logs to corroborate him. It may well be that Gordon has

a weak case and little chance of recovery from Riley,

1 Since Gordon’s various pleadings do not suggest that the

incident of which he complains was anything other than an

isolated one or that it resulted from any administrative policy

established or maintained by the warden or the commis-

sioner, we see no ground for injunctive relief against either.

10a

but the material fact of Riley’s presence or absence is

disputed and summary judgment is inappropriate. Rule

56(c), F. R. Civ. P.

The Maryland Case

Of course, Young did not allege a claim for damages

upon which relief could be granted against the warden

of the Maryland Penitentiary. Bursey v. Weatherford,

supra.? But we think that it was error to deny a pro se

civil rights litigant leave to amend his complaint even

though he did not state in his motion for leave how he

would cure the deficiencies in his pleading.

It would seem to us that, on the basis of his

allegations, Young may have a claim for damages

against the guard or guards who searched his cell under

§ 1983. Since Young thus alleged facts under which a

meritorious claim might be proved, his complaint

should not have been dismissed; Young should have

been granted the opportunity to disclose the identity of

the searchers, if known to him, and to have joined them

as defendants in substitution for the warden; or, if

Young did not know their identity, the court should

have afforded him the opportunity to discover them

from the warden, either from his personal knowledge,

the personal knowledge of his subordinates or the

records of the institution, and advised Young how to

proceed. A district court is not required to act as an

advocate for a pro se litigant; but when such a 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 deter-

mine 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. If it is apparent to

the district court that a pro se litigant has a colorable

2 In our view, Young’s allegations were insufficient to state

a claim for injunctive relief against the warden. See n.1,

supra.

lla

claim but lacks the capacity to present it, the district

court should appoint counsel to assist him.%

In accordance with the foregoing, we reverse the

judgments in both cases and remand them for further

proceedings in accordance with the views we have

expressed.

REVERSED AND REMANDED.

HALL, Circuit Judge, dissenting:

:

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 detend-

ant. To me, Owens v. Oakes, ____ F.2d ____ (No. 76-1646

January 10, 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.

3 We agree with our dissenting co-panelist that, rather

than to dismiss a claim having colorable merit but pleaded

insufficiently, a district court should appoint counsel to assist

the pro se litigant. The difficulty here is that neither was

counsel for Young appointed, nor was Young advised of the

proper procedures to develop his claim.

12a

Il.

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 pragmetic 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 (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 (1976),

created any duty upon a district court to “assist” a pro

se litigant, as opposed to merely “advising” him as the

majority notes.' Further, the district court in Canty, like

1 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

13a

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, MAE niles OF oe

1491 (1977), are read together.

In Bounds, the Supreme Court held that an incarcer-

ated 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, _._. U.S. __,

—___., 97 S. Ct. 1491, 1498 (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

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

comt. ° °° ?

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).

l4a

pleadings, or other documents, a district court must

construe them broadly. 404 U.S. 519, 520-521.”

ITI.

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 underly-

ing cause of action could be clarified, Loper v. Beto, 405

U.S. 473, 476 at n.2 (1972), and the proper parties could

be brought before the court, Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388, 389 at n.2 (1971).

During the course of the litigation, should discovery

become necessary, and hearings or a trial required

later,? counse! 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 an unlearned and

sometimes barely literate prisoner.‘ Prevailing counsel

2 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).

3 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 evidentiary

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. foll. §§ 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 wiil aid both the litigant and the court.

* Cbviously, I do not urge wholesale appointment of

counsel in all civil rights cases, nor do I urge relaxation of

15a

could be awarded attorneys fees in appropriate circum-

stances 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, ___ U.S. ____., 97 S.. Ct.

1491, 1499-1500 at n.n. 19-20, and the district courts

may |t able to draw from this source of attorneys when

appropriate.®

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 standards set forth in Cook v. Bounds, supra. What I 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, 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).

5 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 § 2983, 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.

16a

the heading of the suit, underneath where the defend-

ants 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 1n 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.®

V.

CONCLUSION

These appeals do not present the ever-present

problem of the patently frivolous or repetitive prisoners’

rights cases which tax an already overburdened court

system.’ My concern lies instead with the delicate

8 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

17a

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 basie rules of legal procedure and

substantive law, and the role the court is to impartially

play in monitoring such litigation throughout.' 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.

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 (1963) (successive claims ordinarily

need not be reviewed); and Carroll v. Rankin, 560 F.2d 1177

(4th Cir. 1977) (summary judgment). —

8 See e.g. Graham v. Riddle, supra at 134; Caviness v.

Somers, 235 F.2d 455, 456 (4th Cir. 1956); Fletcher v. Young,

222 F.2d 222, 224 (4th Cir. 1955).

18a

United States Court Of Appeals

For The Fourth Circuit

No. 77-1137

Walter Gordon,

Appellant,

versus

William D. Leeke, Commissioner;

Joe Martin, Warden,

Appellees.

No. 77-1194

Wayne Stephen Young,

Appellant,

versus

George H. Collins, Warden, et al,

Appellees.

ORDER

(Filed May 2, 1978)

It Is ORDERED that the order filed April 21, 1978 is

vacated.

The appellee’s petition for rehearing and suggestion

for rehearing en banc has been submitted to the court.

A poll on the suggestion for rehearing en banc was

requested and the suggestion fails for want of a majority

of judges eligible to vote in the poll.

The panel considered the petition for rehearing and is

of the opinion that it should be denied.

It Is FURTHER ORDERED that the petition for

rehearing and suggestion for rehearing en banc are

denied.

19a

Entered at the direction of Judge Winter. Judge

Russell, Judge Widener and Judge Hall dissent from the

denial of rehearing en banc.

For THE Court.

/s/WiLLIAM K. Stuarts, II,

Clerk.

In The United States District Court

For The District Of Maryland

Civil No. HM76-1609

Wayne Stephen Young

v.

George H. Collins

MEMORANDUM AND ORDER

(Filed November 16, 1976)

The plaintiff, Wayne Stephen Young, an inmate at

the Maryland Penitentiary, has filed this pro se

complaint which the court will construe as filed under

42 U.S.C. § 1983, to attack the conditions of his custody,

alleging the theft of his watch during a shakedown in

the Penitentiary. Plaintiff seeks an injunction requiring

that “in all shakedowns of the cells in the Maryland

Penitentiary, each inmate to be present at his cell” and

the monetary value of his watch and watch band.

The defendant, George H. Collins, has moved to

dismiss on the ground, inter alia, that the complaint

does not allege any personal involvement in the

incident by him. A thorough reading of the complaint

indicates that “only corrections officials were in the

wing at the time.” Nowhere in plaintiffs complaint

does he allege that George Collins even knew that the

20a

shakedown was taking place, let alone that he was

involved in the theft of the watch. “‘As a general rule,

an official will not be liable in an action brought under

the Civil Rights Act, 42 U.S.C. § 1983, unless he directly

and personally participates in conduct under color of

state law which deprives the plaintiff of rights,

privileges and immunities secured to him by the federal

Constitution.” Richardson v. Snow, 340 F. Supp. 1261

(D. Md. 1972) at 1262.

Accordingly, it is this 16th day of November, 1976, in

the United States District Court for the District of

Maryland,

ORDERED:

(1) that defendant’s motion to dismiss be, and the

same hereby is, Granted.

(2) that the Clerk mail copies of this Memorandum

and Order to the plaintiff and to Assistant Attorney

General Kathleen M. Sweeney, Esquire.

HERBERT F. MurRRAy,

United States District Judge.

le

eee

2la

In The

United States District Court

For The District Of Maryland

Civil No. HM76-1609

Wayne Stephen Young

v.

George H. Collins

MOTION AND ORDER

(Filed December 10, 1976)

In a Memorandum and Order of November 16, 1976,

this court dismissed the above-captioned case. Pursuant

to Rule 59(e) of the Federal Rules of Civil Procedure, the

plaintiff timely filed a motion to vacate judgment. It is

this motion that is now before the court.

Plaintiff, Wayne Stephen Young, an inmate at the

Maryland Penitentiary, filed a pro se complaint with

this court seeking the monetary value of his watch and

watch band which he alleges were stolen by a prison

guard during a shakedown of the cells. The defendant

moved to dismiss the complaint. This court, after

careful consideration of the plaintiff's complaint as well

as the relief sought, concluded that there was no basis

of liability on the part of.Mr. Collins. Plaintiff now asks

this court for leave to amend his complaint so that he

may properly allege that Mr. Collins was involved in

the theft. The defendant opposes this motion asserting

that “there is no basis in fact whatsoever to find any

liability on the part of Defendant Collins.” This court

must agree with this position. Nowhere in the entire

complaint does plaintiff allege one fact with reference

to Mr. Collins. Further, plaintiff does not allege, in his

motion to vacate, any facts to show that Mr. Collins

was personally involved in the incident, nor any new

ET MMMM Tree erm re

22a

facts of which he was not aware at the time he filed his

original complaint.

Accordingly, it is this 10th day of September, 1976, in

the United States District Court for the District of

Maryland,

ORDERED that plaintiff's motion to vacate judgment

be, and the same hereby is, Denied.

HERBERT F. MuRRay,

United States District Judge.

ant

Crna 4

23a

In The

District Court Of The United States

For The District Of South Carolina

Columbia Division

Civil Action No. 76-751

Walter Gordon,

Plaintiff,

v.

William D. Leeke, Commissioner,

Joe Martin, Warden,

Defendants.

ORDER

(Filed December 2, 1976)

The parties have endeavored to respond to the latest

Order entered in this cause on August 24, 1976 by filing

supplements to earlier pleadings and affidavits. The

plaintiff has submitted three affidavits and the defend-

ants have submitted two affidavits and an exhibit with

two supplemental answers.

The plaintiff in his affidavit of August 31, 1976

identifies one of his alleged assailants as “Bernard

Brown.”! A fellow inmate, Joe Harris, also by affidavit

of August 31, avers that he witnessed four black

inmates force Walter Gordon into a cell “in January”

while two black officers stood by and watched “but. . .

did nothing to assist Gordon.” Harris states that he

cannot name the attackers, but that one of the officers

1 Plaintiff avers that he has heretofore declined to identify

Brown because of fear for his (plaintiff's) life; he denies that

he knows the identity of either of the other three alleged

malefactors who assaulted him on or about January 29, 1976.

He does not name either of the two officers who allegedly

neglected to intercede for him when the assault commenced

within their field of view of Cell Block One.

iii a

24a

who was on the tier is “Officer Riley.” A third affidavit,

this one by inmate David Johnson on August 31, 1976,

avers that he was with affiant Harris when plaintiff

Gordon approached them “{o]n a day in January” and

overheard Gordon’s account of the assault and robbery

near two apparently disinterested officers. Johnson

avers that Gordon was “badly beaten and his face was

bleeding.” Johnson adds that Gordon declined to go to

the hospital because “he feared for his life, and. . . if

he went to the hospital . . . they would expect him to

tell them what had happened to him.”

The defendants have filed two supplemental answers.

The first one, filed September 27, 1976, complies with

the Court’s request for the identity of the officer in

charge of Cell Block One on January 29, 1976 when the

alleged attack of Gordon took place. The affidavit of

Assistant Correctional Supervisor M. Woodward, Jr.,

dated September 20th, avers that he was on duty at Cell

Block One on January 29, and that no one including the

plaintiff informed him of the assault now claimed by

Gordon and Harris to have occurred within his

jurisdiction. Woodward adds the obvious, i.e., that had

such an assault been reported to him, he would have

conducted an investigation “immediately.”? The second

supplemental answer denies that averment of affiant

Joe Harris that “Officer Riley” witnessed the assault of

the plaintiff. Attached to the answer is the affidavit of

officer Neville Riley, dated September 29, 1976, denying

any knowledge of the alleged assault upon Gordon.

Riley adds that he was not on duty on January 29, 1976,

and attendance logs of correctional officers for that

date are annexed to the supplemental answer filed on

2 From the numerous § 1983 cases this member of the Court

has been called upon to decide, judicial notice can be taken of

the practice of Department of Corrections officials to

investigate crimes and violations of disciplinary rules in the

South Carolina prison system. Many such cases complain of

the facts concerning such investigations. It is obvious,

however, that an unreported crime cannot be investigated.

Cf. Joyner v. McClellan, 396 F. Supp. 912, 915 (Md. 1975).

25a

October 5, 1976, purporting to attest that Riley and

eleven other officers were “Off” on the day shift which

worked Thursday, January 29, 1976.

The plaintiff has not responded to the two supplemen-

tal answers or to the affidavits of Woodward and Riley.

Although the Court is not fully persuaded that some

type of assault did not occur, the plaintiff has not stated

a claim of constitutional import against defendants

Leeke and Martin. Two of the affidavits submitted by ©

the plaintiff himself® aver that the alleged incident was

not reported to authorities because of Gordon’s fear of

possible reprisals against him. Although Gordon has

earlier alleged that he reported the incident to a Deputy

Warden (Davis) when he sought protective custody on

or about February 1, 1976, the Deputy Warden flatly

denies plaintiff's claim, and the plaintiff has not

submitted any additional corroboration since that

denial was filed.‘ It would defy a normal determination

of credibility to believe that Gordon reported the rape to

Warden Davis immediately after the offense when he

now claims he wouldn’t even go to the hospital because

hospital authorities would require him to report the

cause of his alleged injuries.

As stated in a previous Order, this case, at best, is

nebulous. However, dismissal is necessary for another

reason that is more compelling. The plaintiff seeks

damages in this suit from two officials of the Depart-

ment of Corrections who are not subject to liability for

damages here under the doctrine of respondeat super-

ior.5 The personal involvement of defendants Leeke and

3 These are the Gordon and Johnson affidavits.

‘ The affidavit of Herbert Davis was filed on August 9,

1976, and was mentioned in the Court’s previous Order of

August 24, 1976.

5 Barrow v. Bounds, 4 Cir. (unreported), 498 F.2d 1397

(1974); Chapman v. Slayton, 4 Cir. (unreported), 526 F.2d 588

(1975); Landman v. Royster, 354 F. Supp. 1302 (E.D. Va.

ome and Bursey v. Weatherford, 528 F.2d 483, 488 n.7 (4 Cir.

1975).

26a

Martin is not shown in any of the pleadings, and they

cannot be held vicariously liable for the alleged acts of

their subordinates. Their direct involvement in an act

or acts constituting a deprivation of a right secured to a

prisoner under the Constitution, or a deliberate ratifica-

tion of such a constitutional deprivation, must be

alleged and proved before liability could attach. No

such involvement or acquiescence is shown here, or

even alleged. Therefore, it is mnececcsary for the

complaint of the plaintiff to be dismissed.®

AND It Is So ORDERED.

RosBert W. HEMPHILL,

United States District Judge.

Columbia, South Carolina

November 30, 1976

® The Court assumes that the identification by the plaintiff

of one of his alleged rapists will have prompted an

investigation of the rape incident alleged by him by the

Department of Corrections by this time. If tpg is willing

to testify against “Bernard Brown,” if such a person was in

fact at CCI for the two or three days Gordon was not locked

up during January of 1976, administrative action, if not

criminal action, would appear to be justified if a proper case

is made. This observation is made because of the defendants’

omission of any mention of Brown in their last two answers,

in contrast with express reference to officer Riley’s identifica-

tion.