# Petition — Leeke v. Gordon

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 970

## Text

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

ed el ala A 5a eee
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1457%3A1. Public record. Not legal advice.