Opposition Brief — Denton v. Hernandez

No. 88-2034

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

GEORGE F. DENTON, et al., Petitioners,

Vv.

MIKE HERNANDEZ, Respondent

BRIEF OF RESPONDENT

RE PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD W. NICHOLS, ESQ

McDONOUGH, HOLLAND & ALLEN

A Professional Corporation

555 Capitol Mall, Suite 950

Sacramento, California 95814

Telephone: (916) 444-3900

Attorney for Respondent

RECEIVED

2020

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TABLE OF CONTENTS

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I. The Effect of this Court's decision in Neitzke v. Williams,

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II Inter-Circuit Conflict as to the Meaning of "Frivolous" Under

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88 Factual Considerations in Determining Frivolousness Under

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Cases

Andersor V Coughlir 700 F.2d 37 43 [2d Cir 1982 é

Neitzke v. Williams, No. 87-1882, 490 US 109 S¢

104 L.Ed.2d 338 ;

[raufler v. Thompson, 662 F.Supp. 945, 946 [N.D. Ill. 1987 p

Statutes

RICHARD W. NICHOLS, ESQ.

McDONOUGH, HOLLAND & ALLEN

A PROFESSION AL CORPORATION

555 Capitol Mall, Suite 950

Sacramento, California 95814

Telephone: (916) 444-3900

Attorneys for Respondent

MIKE HERNANDEZ

No. 88-2034

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

GEORGE F. DENTON, et al.,

Petitioners,

Vv.

MIKE HERNANDEZ,

Respondent,

Nee eee eee ee

BRIEF OF RESPONDENT RE PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Mike Hernandez, respondent in the above-captioned proceeding, by and

through counsel appointed for him by the United States Court of Appeals for

the Ninth Circuit, does herewith submit his brief in response to the petition of

George F. Denton, et al., for certiorari to said United States Court of Appeals. In

what may perhaps appear to be an unusual posture, Hernandez agrees with

petitioners that this proceeding is an appropriate one for the granting of

certiorari.

OPINION BELOW

The opinion of the United States Court of Appeals for the Ninth Circuit

appears at 861 F.2d 1421 A copy of that Opinion is appended hereto as

Attachment 1. A petition for rehearing, and suggestion of rehearing en banc,

filed by petitioners herein, was denied by that Court. A copy of that Order is

appended hereto as Attachment 2

[URISDICTION

This Court has jurisdiction over the certiorari petition filed herein,

pursuant to 28 U.S.C. §1254(1)

STATUTE INVOLVED

28 U.S.C. §1915(¢): “The court may request an attorney to represent any

s+ tho

Ah UAE

such person unable to employ counsel and may dismiss the case

allegation of poverty is untrue, or if satisfied that the action is frivolous or

malicious.” (Emphasis added

QUESTION PRESENTED

Petitioners have stated the question presented, as follows

"Whether a Federal District Court may dismiss a

complaint pursuant to 28 U.S. Code section 1915(d) if it finds

the complaint wholly fanciful even though the allegations in

the complaint do not conflict with facts of which a court may

take judicial notice

STATEMENT OF THE CASE

Prior to 1986 respondent Mike Hernandez, a state prisoner, Qad filed "

r

separate civil rights complaints pursuant to 42 US.C §1983. On numerous

occasion? the United States District Court for the Eastern District of Calitornia

had granted Hernandez leave to proceed in forma pauperis, under 28 U.S.C

§1915(a), but had pronounced itself unable to “determine trom the present

record whether o* not plaintiff's claim is frivolous within the meaning of 28

U.S.C. §1915(d). The District Court had ordered Hernandez to engage

document discovery, pursuant to the Federal Ruies of Civi! Procedure, to

obtain certain requested information.

On April 17, 1986, however, while various discovery motions by

Hernandez were pending!, the United States Magistrate filed findings and

recommendations that all of those complaints be dismissed, pursuant to 28

U.S.C. §1915(d). On May 5, 1986, the District Court adopted the Magistrate's

recommendation and entered judgments of dismissal as to each of those cases.

Hernandez filed notices of appeal as to three of those five cases; in each of

those three cases, Hernandez had filed with the Court affidavits from other

prisoners, which tended to support his factual allegations.

The various complaints contained allegations that Hernandez, during

night hours while he was asleep, had been drugged and rendered comatose by

prison guards, and had then been assaulted and raped in his cell, by those

guards and/or by other guards or inmates allowed into his cell by those guards.

Because of his comatose state, Hernandez did not claim to be able, personally, to

identify any of his assailants, although affidavits from other prisoners did

purport to identify some of them. The complaints alleged that Hernandez had

sought medical attention for his injuries, and administrative relief prohibiting

the commission of further similar assaults, without success. Collectively, the

complaints alleged that such events had occurred on 28 occasions over a period

of more than two years.

The Magistrate's recommendation for dismissal, which the District Court

adopted, was based upon the following rationale contained in the

recommendation:

"The court has concluded that the present five actions

lack arguable substance in law or fact and should therefore be

1 Hernandez had sought various documents from his prison medical file, in an effort to obtain

evidence which would have tended to support his factual allegations concerning the assaults

which are the subject of this proceeding. In light of the dismissal of his actions at the district

court level, those discovery motions were never ruled upon.

3.

dismissed. Although each complaint, taken separately, is not

necessarily frivolous, a different picture emerges from a

reading of all five complaints together. Plaintiff alleges that

both guards and inmates, at different institutions, subjected

him to sexual assaults. Despite the fact that different

defendants are allegedly responsible for each assault, the

purported modus operandi is identical in every case.

Moreover, the attacks occurred only sporadically

throughout a three year period. The facts thus appear to be

‘wholly fanciful’ and justify this court's dismissal of the

actions as frivolous.”

The Ninth Circuit Court of Appeals reversed the dismissals, and

remanded the cases to the District Court. Three separate opinions were

authored by the panel. The lead opinion affirmed the dismissals on certain

claims which are not the subject of the present certiorari petition’, but reversed

the dismissals on the subject claims, because those dismissals had been “based

upon credibility determinations impermissible under section 1915(d)." 861 F.2d

at 1427, slip opinion at 14466. The holding of the lead opinion was to the effect

that “[o}nly if the facts alleged are impossible in light of any judicially noticeable

fact may the district court find a complaint ‘wholly fanciful’ and hence without

arguable substance in law or fact.” 861 F.2d at 1426, slip opinion at 14465

A concurring opinion agreed that reversal was appropriate, but only

because Hernandez had not been given prior notice of the alleged deficiencies

in his complaints, and an opportunity to correct those deficiencies by

amendment, as required by Ninth Circuit case law. The concurring judge

agreed that the Magistrate had “erroneously. concluded that Hernandezs

allegations were ‘wholly fanciful’ because unlikely” (861 F.2d at 1427, slip

opinion at 14467). The concurring judge did opine that, if Hernandez did not

subsequently amend his complaints to “add allegations that will establish the

connection of each defendant to the deprivations and that will establish that

Hernandez has been the victim of unconstitutional conduct, rather than mere

~

The Court of Appeals also reversed the dismissal of Hernandez’ claims under the Eight!

Amendment, involving allegations of (a) deprivation of a blanket for an unspecified penod of

time, (b) deprivation of shoes for a month, and (c) physical and verbal abuse by pnson officials

negligence,” then a dismissal of the complaints would be appropriate, as urged

by the! dissenting judge. A lengthy dissenting opinion (861 F.2d at 1427 et seq.,

slip opinion at 14467 et seq.) set forth the view that Hernandez’ various

complaints represented nothing more than “the hallucinations of a troubled

man" (861 F.2d at 1440, slip opinion at 14495), and that no amendment could

cure that problem.

The California Attorney General, representing the appellees (petitioners

before this Court), filed a petition for rehearing and suggestion of reheaz.ig en

banc. He stated therein that the question to be considered was “how a district

court is to determine whether a complaint is wholly fanciful.” Respondent

respectfully agrees with the Attorney General's characterization of the critical

issue in this case. Unfortunately, the Court of Appeals declined the invitation

to clarify its views on the subject, as a result of which the present certiorari

petition was filed.

ARGUMENT

I The Eff f this Court’ ision i i illi _ 87-

On May 1, 1989, this Court issued its opinion in Neitzke v. Williams, No

87-1882, 490 U.S. __, 109 S.Ct. ___, 104 L-Ed.2d 338. The Court held that the

fact that a pro se complaint fails to state a claim sufficient to withstand a

motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure

does not automatically render that complaint subject to dismissal, as frivolous,

under 28 U.S.C. §1915(d).

The instant case represents the next step of the Neitzke analysis. Neitzke

establishes the proposition that Rule 12(b)(6) and Section 1915(d) “were devised

to serve distinctive goals" (104 L.Ed.2d at 347), and that while the two standards

have considerable overlap, they are not identical. Neitzke also establishes that

Section 1915(d) accords to district judges “the unusual power to pierce the veil

of the complainant's factual allegations and dismiss those claims whose factual

contentions are clearly baseless" (104 L.Ed.2d at 348). The Court has even

5-

articulated that Section 1915(d) would extend, by way of example, to “claims

describing fantastic or delusional scenarios, claims with which federal district

judges are all too familiar.” Ibid

The question to be asked, in this regard, is how or under what standards a

district judge is to conclude that a particular claim is “clearly baseless” because it

is “fantastic or delusional.” That question was at the heart of Hernandez

appeal, and a majority of the Court of Appeals panel appears to have concluded

that “lack of credibility” and “unlikelihood” are insufficient to qualify within

the “clearly baseless” standard. The lead opinion has answered the standards

question, correctly in Hernandez’ view, by concluding that a district court must

be able to take judicial notice of facts rendering the allegations of the complaint

untrue, before that court can dismiss a complaint as factualiy frivolous under

28 USC. §1915(d). The dissent obviously contests that view. In light of the

multiplicity of opinions, Hernandez is in agreement with the assertion of the

California Attorney General that the Opinion of the Court of Appeals is

confusingly drafted

fl. Inter-Circuit Conflict as to the Meaning of “Frivolous” Under §1915(d)

Petitioners urge upon this Court a definition of “frivolous,” within the

meaning of 28 U.S.C. §1915(d), as “beyond credulity.” Petitioners assert that

there is some support for this definition in a holding of the Second Circuit

(Anderson v. Coughlin, 700 F.2d 37, 43 [2d Cir. 1982]), and of a district court

within the Seventh Circuit (Traufler v. Thompson, 662 F Supp. 945, 946 [ND

Dl. 1987})

As petitioners concede, however, the majority of the circuits adhere to a

less discretionary definition of the term “frivolous,” and require that the

plaintiff be able to “prove no set of facts” (Sixth, Eighth and Eleventh Circuits)

or to “make no rational argument in law or fact” (Fifth, Seventh and Tenth

Circuits), or that there is “indisputably absent any factual basis” for the claim

(District of Columbia Circuit). See, e.g., 52 A.L.R. Fed. 679 et seq., Standards for

This Court's opinion in Neitzke, however, may be read to support the

“beyond credulity” standard of the Second Circuit. In that context, petitioners’

application for review by this Court is appropriate.

allegations as “unlikely.” A number of factors, however, are shown in the

record to support at least the possibility of another conclusion, including the

following:

1. Hernandez had moved for document discovery of various of his

prison medical records, supposedly in aid of being able to support his credibility

by showing that he had in fact sought the medical attention which he alleged’;

2. Hernandez had filed affidavits from three other prisoners which

purported to support his contentions that guards and other inmates had

entered his cell at night; and

3. The Magistrate had opined that Hernandez’ allegations, taken

separately, were not frivolous, and that it was only their identical nature in

multiple instances that rendered them frivolous.

Hernandez respectfully suggests that there is nothing inherently

incredible, or “wholly fanciful,” about the proposition that drugs exist, or that

homosexual activity occurs, or that inmate-guard relationships are less than

amicable, in prison settings. This is not a case where a prisoner is alleging that

“little green men from Mars” have taken over his mind by radio waves, and

that prison authorities are responsible therefor! Allegations of that type would

no doubt qualify for inclusion under the “fantastic or delusional scenarios”

3 if Hernandez’ claims can properly be dismissed as “fanciful,” such a result will occur (a) in

the face of the Disirict Court's inability to make such a determination on the basis of the face of

his individual pleadings along, but (b) in the face of the District Court's failure to allow him to

attempt to secure objective evidence which might tend to support those ciaims.

Ja

| trom the repetitive imbe ( allege

language of Neitzke. Bui, aside | t)

incidents, Hernandez’ claim that he was unaware

were occurring, and his claim that prison guards were

is nothing in the inherent nature of Hernandez’ allegations tha

with judically noticeable facts about the “seamier” side of pris

CONCLUSION

The Ninth Circuit Court of Appeals, consistent with a ma

are impermussiDle

other circuits, has held that determinations of credibility

the decision of whether an in forma pauperis complaint should be d SS :

frivolous, pursuant to 28 US.C. §1915(d This Court's recent decis

Neitzke v. Williams, supra, appears to place that neept il é

decision of the Court of Appea Sin the instant :

the reasons raised oy petitioners. Accord Mik

does not oppose the petition for writ 7) ‘ rar ‘

Attorney General on behalf of Georgs lent ‘

DATED: July 6 1989

Respect!

chard WW) Urekola

Richard W. Nichols

McDonough, Holland & Aller

\ Professional Corporat

Attorney (Appointed t

ted States ( rt ‘ \r

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f

HMENT

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Mike HERNANDEZ, Nos. 86-2139,

Plainuff-Appeilant, 87-1693/1694

v. } D.C. No

GeorGE F. DENTON, et al., CV-S-83-645-LKK

Defendanis-Appellees. OPINION

Appeal from the United States District Coun

for the Eastern District of California

Lawrence K. Karlton, District Judge. Presiding

Argued and Submitted

January 12, 1988—San Francisco. California

Filed November 23, 1988

Before: Ruggero J. Aldisert.* J. Clifford Wallace. and

Mary M. Schroeder. Circuit Judges

Opinion by Judge Schroeder; Concurrence by Judge

Wallace: Concurrence and Dissent by Judge Aldisert

SUMMAR\

Civil Rights/Prisons and Jails/Courts ana Procedure

The coun of appeals affirmed in pan and reversed in pari

a district court judgment. The court held, inter alia. that the

*Honorable Ruggero J. Aldisert, Senior United States Circuit Juage for

the Third Circuit, sitting by designation

14453

14454 HERNANDEZ V. DENI

district court erred in making a credibility determinate

dismissing a prisoner's pro se complaint alleging numerous

prison rapes as “wholly fanciful.”

Appellant Mike Hernandez. a prisoner at Vacaville Medi

cal prison in California filed in forma pauperis suits agains!

prison officials at a number of prisons. Hernandez filed hve

pro se complaints alleging 42 US.C. § 1983 violations

acluding due process claims that he was placed in adminis

trative segregation without written notice of reasons. an

opportunity to present evidence. have an attorney. represent

him, and without written justification. The complaints also

alleged Eighth Amendment violations for having to sleep on

the floor without a mattress for one night and without a blan-

ket for an unspecified number of nights. that he was not

ssued shoes for a month. and that he was physically and ver-

bally abused by prison officials. The complaint also alleged

that he was drugged and homosexually raped over 28 times h

both prisoners and prison officials. The district court. on tt

magistrates recommendation. dismissed the complaints

because. when viewed together. the rape allegations were f1

olous under 28 U.S.C. § 191¥d)

{1] The district court properly dismissed the due process

claims: the Due Process Clause does not require detailed writ

ten ndatice of charges. representation by counsel. an opp

nity to present witnesses. Or a written decision justifying the

reasons for placing a prisoner in administrative segregat)

{2} However. Hernandez may be able to state an Eighth

Amendment claim based on his having been deprived of

shoes for a month and that he slept without a blanket for an

unspecified amount of time as they may indicate wanton

infliction of pain or deliberate indifference on the part o!

prison officials. Accordingly. Hernandez should be allow ed io

amend his complaint to claim this deprivation. [3] But. Her-

nandez allegation that he slept without a mattress for only

one night is insufficient to state an Eighth Amendment claim

and no amendment can alter that deficiency. [4] However

HRN 4NDEZ V. DENTON 14455

Hernandez’ rape claims by prison guards and prisoners. if

construed liberally, may indicate deliberate indifference on

the part of prison officials. [5] Moreover, prison beating

guards may involve a deprivation ofa liberty inierest in viola

tion of due process and insufficient protection of a prisoner

resulting in harm inflicted by other inmates may also violate

a prisoner's due process rights. [6] A district court should not

dismiss On its Own motion an in forma pauperis complaint

unless it has no arguable substance in law or fact, including

the recitation of bare legal conclusions without supporting

facts, the claims are redundant or barred by res judicata, the

defense 1s obvious and complete based on the pleadings and

court records, or the claims are “wholly fanciful.” [7] In this

case, the district court erred in dismissing the claims as

wholly fanciful based on an exercise of credibility determin.

tion because the alleged facts are not impossible in light

any judicially noticeable fact

Judge Wallace. concurring. agreed that Hernandez sh

be allowed to amend his complaints. if he can. to add alleg

tions that would establish the connection of each defendar

to the deprivations that he claims and that he has been tt

victim of unconstitutional conduct rather than mere neg

gence. However. should Hernandez fail 10 remedy the prot

lems in his complaint. the court should dismiss his claims a

}

Irivolous

Judge Aldisert concurred with the majority regarding tt

dismissal of the due process and the Eighth Amendment mat

tress claims. However. he dissented from the Eight

Amend

ment rape and related claims. Judge Aldisen opined that th:

majority was giving Hernandez a second notice that his com

plaints were to be dismissed and could be amended a second

lume to make factual averments to permit him to mount the

hurdle of frivolity

14456 HERNANDEZ V. DENTON

COUNSEL

Richard W. Nichols. McDonough. Holland & Allen. Sacra-

mento, California, for the plaintiff-appellant

Patricia C. Esgro, Deputy Attorney General. State of Califor-

nia, Sacramento, California. for the defendants-appellees

OPINION

SCHROEDER. Circuit Judge

Appellant is a prisoner proceeding in forma pauperis in

Suits against prison officials at a number of prisons. He

appeals the district court’s dismissal of three complaints as

“frivolous” under 28 U.S.C. § 191 S(d)

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

§ 1983 violations. The three complaints at issue in this appea

made the following allegations

(1) Due process claims: Appellant alleges that he was placed

in administrative segregation without written notice of the

reasons. afm Opportunity to present evidence. an opportunity

to be represented by counsel or written justification. In addi-

tion. appellant alleges that he was punished before receiving

procedural due process in connection with other alleged rule

violations

(2) Eighth amendment claims other than rape claims

Appellant alleges that he had to sleep without a mattress for

one night and without a blanket for an unspecified period of

time. In addition, he alleges that he was not issued shoes for

a month. Finally, appellant alleges physical and verbal abuse

by prison officials;

mosexua rape Over l

prison officia’s at different institutions

The district court referred all cases to a magistrat

deiendants had been served and had answered with respe

some but not all of the claims. The Magistrate reviewed a

claims and recommended that the district court dismiss then

because the complaints, viewed together, indicated that

appellant's rape allegations were frivolous. The magistrate

did not discuss the other claims. The district count fol!

the magistrate’s recommendation and dismissed pursuant 1

section 1915(d), which provides in pertinent pan as f

The court may dismiss [a case proceeding in f

pauperis] if the allegat nN Of poverty 1s untr

Salished that the action 1s ft

SB OhT oe By j

V ha - i that whe r ~ at

nti failure to Sta 3 nT msn me |

ce sexplainingt the plaintiff the deficie es ar

1} pla nif amend A ( nm &O9 F 3 34 +

Yin Cir. 198 arim-Pana} l 4nge /

\ Q ¢ 98. ship op 634 9th Cir. Fe é

Because pro se litigants are unskilled in the law. th

prone to pleading errors. Without guidance. amendment

these litigants are made without an understanding of the

ciencies and are usualiy insufficient to cure deficient p

ings. Thus, when instructing pro se litigants to amer

surts should briefly explain the complaints’ def

the pro se plaintiffs will be better equipped to amer

rectly. Nol/, 809 F.2d at 1448. However. if it “is abs

clear that the deficiencies of the complaint could not be

by amendment,” the district court may dismiss. Fran

Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984)(quoting

14458 HERNANDEZ V. DENTON

Broughton Cutter Laboratories, 622 F.2d 458. 460 (9th Cir

1980)).

{1] The procedural due process claims before the district

court do not appear sufficient on the face of the complaints

We have ruled that, because prison safety 1s paramount. the

procedural due process rights of prisoners are adequately pro-

tected by post-segregation decisions that administrative seg-

regation is justified. Touissant v. McCarthy, 801 F.2d 1080.

1100 (9th Cir. 1986), cert. denied. 107 S. Ct. 2462 (1987)

“(T]he due process clause does not require detailed written

notice of charges, representation by counsel or coun-

sel-substitute. an opportunity to present witnesses, or a writ-

ten decision describing the reasons for placing the prisoner in

administrative segregation.” Jd at 1100-0!. In this case.

appellant alleges that he was placed in administrative segrega-

tion without written notice. an opportunity to present evi-

dence. an opportunity to be represented by counsel or written

justification: appellant did receive post-depris ation hearings

Appellant's claims fall squarely within 7owssants holding

Therefore. he does not state a claim for siolation of due pro-

cess and no amendment could cure this deficiency. These

claims should be dismissed

The district court did not address the eighth amendment

claims when it dismissed appellant's complaint. The eighth

amendment prescribes punishments incompatible with

“evolving standards of decency” such as those “so totally

without penological justification that [they] result{] in the

gratuitous infliction of suffering.” Hoptowity Ray. 682 F.2d

1237, 1246 (9th Cir. 1982\quoting Gregg » Georgia 428

U.S. 153. 173 (1976)). Appellant alleges that he had to sleep

without a mattress for one night and without a blanket for an

unspecified pcriod of time, that he was not issued shoes fora

month, and that he was physically and verbally abused by

prison officials. “Prison officials have a duty to take reason-

able steps to protect inmates from physical abuse.” Hopiow it,

682 F.2d at 1250. Physical and verbal! abuse by officiais indi-

Hernandez. DENTON 144589

cates a deliberate indifierence by prison officials to the safety

needs of prisoners, therefore, appellant has stated an eighth

amendment claim based on physical and verbal .abuse

because such abuse is “totally without penological

justification.” Jd at 1237.

[2] In addition, appellant may be able to state an eighth

amendment claim based upon his allegation of deprivation of

shoes for a month. Appellant has not alleged additional facts

suggesting deliberate indifference or gratuitous infliction of

suffering. He may. however, be able to state an eighth amend-

ment claim with respect to the shoes if he amends his com-

plaint. He should be permitted an opportunity to amend

Appellant alleges that he slept without-a blanket for an

unspecified amount of time in a room across from broken

windows. Appellant similarly has alleged no additional! facts

to indicate wanton infliction of pain or deliberate indiffer-

ence. but appellant should similarly be allowed to amend this

claim of deprivation

[3] Appellant's allegation that he slept without a mattress

for only one night 1s insufficient to state an eighth amendmen:

violation and no amendment can alter that insufficiency We

affirm the district court’s dismissal of his claim for one night's

deprivation of a mattress

The district court’s dismissal of appellant's homosexua

rape claims as “frivolous” under 28 U.S.C. § 191 S(d) deserves

more eatensive discussion. For the purposes of determining

whether a complaint is “frivolous.” the coum presumes tha:

the plainuff s allegations are true. Franklin, 748 F.2d at 122s

In addition. courts must construe allegations in pro se com-

plaints hberall,. Shapley v Nevada Bd of State Prisor

Comm'rs, 766 F.2d 404, 408 (9th Cir. 1985) :

[4] If appellant's rape claims are not “fnvolous.” thes may

state claims for violation of both the eighth amendment and

14460 Herwnanpez v. Dentos

the fourteenth amendment. The eighth amendment dictates

‘that prison officials may not be deliberately indifferent to the

safety needs of inmates because such indifference may resul!

in the unnecessary infliction of pain. Hoptowi! 682 F.2d at

1250. Appellant's allegations of rape by prison guards, if con-

strued liberally, indicate deliberate indifference. His allega-

tions that the guards allowed his rape by other prisoners

construed liberally, also indicate deliberate indifference

[5] In addition, prisoner beatings by guards involving

excessive force amounting to brutality are deprivations ofa

liberty interest in violation of due process WcRarie v Sh

moda. 795 F.2d 780, 785 (9th Cir. 1986). Appellant's allega-

tions that he was raped by prison guards are no less troubling

than the claims of beatings in McRorie. Therefore. they state

a claim for violation of appellant's substantive due process

rights

Finally. insufficient protection of a prisoner resulting 1

harm inflicted by other inmates may also + iolate the prisor

er's due process rights. Youngberg v Romer 4s7 US 30°

315-16 (1982) mght to personal security protected by sut

stantive due process and not extinguished by imprisonment

Escamilla. City of Sania Ana. 796 F.2d 266. 269-70 (9th Cir

1986\pohce have a duty to protect individuals if there 1s a

“custodial relationship”). See Orpiano \ Jonnson. 6. 2 F.2d

1096. 1101 (4th Cir. 1980)\af prison officials know of per a-

sive risk of harm to prisoner and fail to protect that prisoner

prisoner has a viable section 1983 claim for s1olation of his

constitutional rights). cert. denied. 480 U.S 929 (1981). In

this case. appellant alleges that prison guards allowed other

inmates to enter his cell and rape him. This allegation if not

frivolous. appears to state a claim for violation of appellants

substantive due process righis

The district court, however, deemed the claims frivolous

Disposition of the rape claims therefore requires some under-

standing of what is meant by “frivolous.” This court ha

Herenanoezy Desato- 44

cra >d th Irisolous” standard under section |9

ength in Franhiliy Murphy 745 F.2d 1221 (9th ¢

We there adopted procedures proposed by the Federal! Jud

al Center in Recommended Procedures for Handling Pr

r ( R ghis Cases in (hn Federal Court $7.58 y*

That :afluential study, chaired by Judge Aldiser. re

mended that if a prisoner meets the economic requrremer

‘ hiue

rin forma pauperis status, the court should permit { 2

the complaint under section 191 5(a) and conduct a separ

and independent inquiry into whether the action is “fr

or malicious” under section 191 5(d). It noted that the def-

tion of “frivolous” may be influenced by Supreme Court

discussing standards for dismissal of pro se complain

60-61. See. eg. Haines v. Kerner 404 US 519. $2

reh g denicd 408 US. 948 (1972). See also. Ander

nia 386U.S 738. 744 reh'g denied. 388 LU S 924 347

noin a 4:Fferen?

: a context thata ntention isf

legal points [are] arguable n their m

v i ega sul en n standa ?

. tha ad aa as e -

c rc 4 c

ai Ku r ed Ku

nlaint < he dice ed upon proper nr ,

d aim u reiiei ma. Ce gran rhs

he ndd Te ha he w are 3

oporn ofh aim which wou ~

} 404ULS a *4

2 . - (Qu 2

S 4 34.4 “a h

~ 7 *

usness under se s)

n ntical to the 12(b4) lega! stand S

‘ perm the distr um upon en rT

4 - merit : - seas ti

weec ul pa eritiess Claims at anea slag r a

at must De tlaaen that section Yidc J:SMiSsa

abused. See Bour Smith. 43 > 8 Se y

er ave nc 5 nal right of access he unt

1446) Heranannezs Diston

sidering section 1915(d) dismissals we thus look not only to

the face of the complaint and the matters actually pleaded.

but beyond to whether the claims have arguable substance in

law or fact. As the Seventh Circuit has explained

Rule 12(b)(6) permits the dismissal of a complaint

for failure to state a claim upon which relief can be

granted only when “it appears beyond doubt that the

plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” (citations

omitted). Under § 191 S(d). in contrast. an in forma

pauperis. pro se complaint can be dismissed sua

sponte by the district court only if the petitioner can-

not make any rational argument in law or fact which

would entitle him or her to relief Thus. the

§ 191 5(d) test is less stringent than the Rule | 2(bx6)

dismissal standard

Wola vs Faulkner. No. $7-1417. shpop at $(7th Cir Jan

12. 1988). This is a more lemenmt standard because

[nleither [the opporunity to further develop a

claim]. nor the sharply honed adversarial exchange

involved in a Rule 12(b#6) motion and opposition

are present when dismissal 1s sua spore Sua sponte

dismissal 1s therefore 2 much more truncated pro-

cess than is dismissal under Rule 12(b6). In giving

effect to the intent with which Congress created the

narrow exception in section 191 5(d) for sua sponte

dismissals. this difference must be taken into

account

Brandon v. Dist of Columbia Bd of Parole 734 F.2d $6. $9

(D.C. Cir. 1984). cert denied. 469 U.S. 1127 (1985)

{6] Thus. 'n Franklin we held that pro se prisoner com-

plaints may be dismissed on the court's own motion and prior

to service. but only in limited circumstances: a district court

Heexanoezs Destin 14440

May not dismiss an in forma pauperis complaint uniess it has

no “arguable substance in law for] fact” Franklin 745 F 2d

at 1227 (adopting standard in Wasson » Aulr $25 F 2d 886.

892 (Sth Cir. 1976)) See also Brandon 734 F 2d at $9 (claim

not viable). Crisafiv Holland 655 F.24 1305. 1307-08 (DC

Cir. 1981 (no suggestion of supporting facts). fur: + Parr

758 F 2d 1254, 1258 (8th Cir. 1985 face of complaint shows

“msuperable bar to relief Wquoting Jackson Sanmi!! Co +

United States $80 F.2d 302, 306 (8th Cir 1978). cert denied

439 US. 1070 (1979)).

We have recognized several possible bases which may jus-

tify a district court's decision to dismiss an in forma pauperis

complaint as having no arguable subsiance in law or fact

First. a court may dismiss as frivolous complaints that recite

bare legal conclusions without am) supporting facts Frar«

748 F.2d at 1228 See Tripatiss First Nar? Bank & Truss 42

F.2d 1368. 1370 (9th Cir 1987)

Second. a coum may dismiss if the plaints clarms are

redundant or barred by res pudicata because of pres sous it

gation Tripar: 821 F.2d at i3°O See Van Uerers Aforgs

$18 F.2d 366. 368 (8th Cir. cer’ dered 323 US ave

(197S) The district court may review its own records

Getermine whether. given previous coum documents the

plasntif’'s claims are redundant S:orer s Rag: 322 F 2

3144. 316 09th Cir 1963). cers deri 3768 U § 82 +3

Third. we have observed that “[ajn action mas be dis

mussed under section 191 id) where the defense is compiler:

and obs ious from the face of the pleadings or the court's o«7

records.” Franklin 748 F 24 122). 1228

Fourth. a court mas dismiss a claim that us founded or

“wholly fanciful” factual allegations /d ft appears tha: the

district court viewed the rape allegations im this case as fanc)-

ful because it did not believe so mans similar episodes could

have occurred However. the district court could not proper!

i. f a ; 5

: , al ed a standard f friy "es ws) '

exe redih —

7] In se nm 1915(d) dismissal of act a wt

we musia rdingly look to a standard which f

. a al on grounds of a credit assessment S

andard ss found in the principles of judicial n c

ndeed, in authorizing dismissal of complaints founded

wh fanciful” factual allegations in Franklin. we re

suoted authorits in tw ther circuits applying a

¢ standard in assessing “fanciful aliegatior

“oo 4ismmiss as fr y mplaints re ne

Ra ns with no suggestion of supy

, postulating events ar rcumstance

‘ kind Sin a mt

might a ' ' -

, > F

k

, ubie reasonable dispute becau

. nd ready determina ne oo

d anr rea nat De Ques

ed. RE E Cleary. Af k's Hand

i Jer 329-3 2c ec ’ Such ar

anG 2 %% ftequirec ii Courts are 1 maac state ff

ble for meritonous prisoner claim stitut

a’ c va 4 ” \

_ b ’ appea ar | " hye

je nda ; “e

Admitted i1 1S tempting toe a

mpia at the pieacing ag

fae ¢ - ther tan

|however). this 1s another instance

which in the long run makes waste

Durning. 139 F.2d 774, 775 (CA

}) Kcitation omitted

E ste 429U S at 112-13 (Stever :

many Yakah: S49F 4 1) ¢

ne Justice Stever Brar 734 &§

F.2d at 1258. Or f the fa alleged a

ar , d noticeaDie ta ma r

npla wb far ; hence &

4 ein ia ria

I ta alice r 4

ee \ua) fay

Lecemb a4 + $

c h Ff n fF , ar 4

Va He alieges rape be

\ his arn -

id been drugged . 92

i mae ar

iT se kud ape air ne

piaints al.ege ar f

t “i'd simiuiar ir ; .

man similar incidents occurred B “e

r ¢ that none o then 7 J “ T ™

source t te s they did n happe

By determining the {nv ne a

e » the 4 -

he mer

fact ;

‘

, a 4

‘ guar

944 :

enting

. ¢ VU

“ >

are

) ;

4

: ak

14466 Hernanpezs. Distos

determination by the magistrate that appellant's claims were

not credible. This is not permissible. Franklin. 748 F.2d at

1228 The magistrate himself stated that “although cach com-

plaini. taken separately. is not necessarily frivolous, a differ-

ent picture emerges from a reading of all five complaints

together.”

If the district court had reviewed appellant's complaints

individually and had treated the factual allegations as pre-

sumpuvely truthful. it could not have dismissed them as friv-

olous because they are not “wholly fanciful”: appellant's

allegations of needle marks on his arms and other evidence of

homosexual rape present claims with an arguable basis in

fact

We affirm the district court’s dismissal of appellant's proce-

dura] due process claim and his eighth amendment claim

based on deprivation of a mattress. However. we reverse the

district court’s dismissal of the remaining eighth amendment

claims because the district court never addressed them and

never Ciered the appellant a chance to correct deficiencies

through amendment. We reverse the district court's decision

on the rape claims as we!!. because the dismissal was based

upon credibility determinations impermissibdie under section

191 Sid)

REVERSED AND REMANDED

“WALLACE. Circuit Judge. concurring:

I concur in Judge Schroeder's opinion insofar as it reverses

the district court’s dismissai of Hernandez’s claims based

upon alleged deprivation of footwear. rape. and other physi-

cal abuse. Under the controlling precedent of this circuit. No//

v. Carlson, 809 F.2d 1446 (9th Cir. 1987), unless it 1s

“absolutely clear” that a pro se civil rights plaintif™s com-

HERNANDEZ V. DENTON 14467

plaint could not be amended to allege constitutional viola-

tons, the district court errs by dismissing the action without

notifying the plaintiff of the complaint’s deficiencies and

allowing him leave to amend. /d. at 1449. Here. as in Nol/

Hernandez amended his complaint, but did so without the

benefit of a statement by the court notifying him of the defi-

ciencies in his pleadings. Jd. The magistrate’s recommenda-

tions to the district court, which erroneously concluded that

Hernandez’s allegations were “wholly fanciful” because

unlikely, did not serve as adequate notice of the complaint's

deficiencies under Noll. Thus, while I agree with Judge Aldi-

sert that Hernandez’s various complain’s faiied to state

claims upon which relief could be granted, see Aldisert. J .

dissenting, reversal is required under Nol/ to allow Her-

nandez a chance to remedy the deficiencies in his complaint

As Judge Aldisert points out in his persuasive dissent. it is

not enough for a complaint to allege conclusions that are

merely “possible.” a plainttff must allege facts from which the

liability of each defendant can rationally be inferred | agree

with Judge Schroeder that Hernand# should be allowed to

amend his complaints, if he can. to aad allegations that wil!

establish the connection of each defendant to the depriva-

tions claimed by Hernandez and that will establish that Her-

nandez has been the victim of unconstitutional conduct

rather than mere negligence. However. I write separately to

emphasize that. should Hernandez fail to remedy the prob-

lems in his complaints after being informed of their deficien-

cies, his claims properly may be dismissed as frivolous for the

reasons stated in Judge Aldisert’s dissent

ALDISERT, Circuit Judge, concurring and dissenting

When Mr. Monroe and his family were routed out of bed in

the middle of the night by the Chicago police, and made to

stand naked in their living room while the cops ransacked

446% HERNAN i BD

room in their home. emptying drawers and ripping

mattress covers, the Supreme Court took long overdue action

In Monroe v Pape, 365 U.S. 167 (1961). the Court resu

tated, if not resurrected, the remedy of the Civil Rights Act of

1874. the now familiar 42 U.S.C. § 1983. Since that day. this

federal remedial statute has been successfully utilized

rect tens of thousands of civil rights violations of all de [

tion, in high school classrooms to maximum securily wings of

us

cor

state prisons

Section 1983 has been a major force in protecting the ind

vidual from countless abuses by the city. county. and State

We have become a more civilized societ, because of the pro

tections it affords those under police arrest or confined t

nenal institutions. Thanks to section 1983. and concurrent

prison reforms. we no longer tolerate the degrading exper

ences ponraved in film classics such as Paul Muni's powe

as Burns in “] Has a Fugitive t e Georgia Cl

Gang.” or Pau! Newman's portrava! af “cove! Hand 1

Nor do we tolerate the dehumanizine treatment tt

DI ns. where a - dec }

Iripy d of his name. addres b an k .

t r tossed ir ole” ind ely. at the s

Pua

It is with sympathy for the cor pris

nthusiastic endorsemeni of U Mr 8§ p

extended to state prisoners by the filing or threat of filing

rights acuons. and the profound sensitivity that n t

extended to pro se petitions for relie!. thai | review the cists

urt’s dismissal of Mixe Hernandez complaints

i join Judge Schroeder's opinion to the eatent that

affirms the district cour’s dismissal of the procedural due

rocess claim and the eighth amendment claim based on

deprivation of a mattress. | do not agree with the majority s

analysis of the other claims set forth b, Judges Wallace and

HERNANDE De» 44

sci jer. | would affirm the judgment of the d

all respects. for reasons other than those given by the d

Let it be understood at the outset that what divides tI

panel on the remaining claims is a very narrow issue. i don

nti

read my colleagues’ opinions as deciding that the pla

many claims can, at this time, pass muster when measured

against standards of frivolousness. | think the entire panel 1s

unanimous in this respect. What divides us 1s that m)

leagues seem to feel Hernandez was entitled to a second not

that his complaints were to be dismissed, and that, some!

he can amend hi mplaints again (all three complaints ha

been amende least once). and make factual averments s

ficient to permit him to mount the hurdle of frivolit

Thus. we disagree only on procedure. Because Herna

mplaints are already fact-specific, setting forth a

narrative of that which occurred first at Folsom pnson a!

at Vacaville. 1 believe that no amendment of fa

the fatal deficiencies that permeate al] his lab

¢ named defendants. The necessary fact f

mm he major premise of his legal! argun

I A be enlarged or altered to suppor p

I inference oO!

T

i

Where a complaint fails to state aclaim on which

be gr e are two levels in the preliminary pr

aa . } - be dism1i ad The Hr

gs a compiaint ma e dismissed ne

under the authority of 28 U.S.C. § 191 5(d). even prior t

vice of the complaint upon the defendant. Frans

Mfurphy. 745 F.2d 1221, 1226 (9th Cir. 1984) (Frank

Under section 1915(d), the court may dismiss the case if sat

fied that the action is frivolous. After service upon the defen

dant, the court may grant a motion for dismissal under

12(b)(6). F.R. Civ. P

14470 Herxanpez ¥. Dixntosn

The district court dismissed Hernandez’ rape allegations as

frivolous, basing its judgment on the recommendation of a

magistrate. The magistrate decided that each complaint.

when read independently of the other complaints filed by

Hernandez, “is not necessarily frivolous,” ER 34 at 5, but that

“a different picture emerges from a reading of all five com-

plaints together.” Jd. The magistrate relied on the test for fri-

volity set out in Franklin—specifically. that the concept of

frivolous embraces complaints “postulating events and cir-

cumstances of a wholly fanciful kind.” Franklin, 745 F.2d at

1228 (quoting Crisafi v. Holland, 635 F.2d 1305. 1308 (D.C.

Cir. 1981) (per curiam)). The magistrate found Hernandez

rape allegations “wholly fanciful” because they were reiter-

ated in several different compiaints alleging the same “modus

operandi.” but involved different prison officials and inmates

at different institutions

Like my colleagues. 1 would not accept the reasoning of the

magistrate adopted by the district court. for under the cir-

cumstances of this case. that would amount to making credi-

bility findings on the pleadings. As Judge Schroeder correct!)

points out. in a section 191 5(d) adjudication. we must assume

the credibility of the plaintiffs allegations unless the, run

counter to law. human behavior. or permissibie inference:

] would affirm the district court’s dismissal for entirely dif-

“crent reasons. a practice permitted in this Circuit. Harc/i 1

Reliance Ins. Co., 758 F.2d 409 (9th Cir. 1985): Salmeron

United States. 724 F.2d 1357, 1364 (9th Cir. 1983): Ang/e 1

United States. 709 F.2d 570. 573 (9th Cir. 1983). I would hold

that even if we credited every factual allegation in Her-

nandez complaints. the complaints are frivolous and mn

opportunit, to amend can possibly cure that deficiency

In each of the complaints at issue in the three appeals

before us. Hernandez included a very detailed statement of

facts. These facts. if believed, do not make out a claim “on the

basis of reasonable inferences and not mere speculation.”

-

HERNANDEZ ¥. DENTON 1447]

Edward J. Sweeney, & Sons, Inc. v. Texaco. 637 F.2d 105, 111

(3d Cir. 1980)

The district court's dismissal of the complaints as frivolous

is Subject to de novo review by this court. Tripati v. First Nat'l

Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987); Rizzo 1

Dawson, 778 F.2d 527, 530 (9th Cir. 1985). Our role here is

to determine whether, as a matter of law, the claims are criti-

cally deficient of the minimum quantum of fact, reason, and

law from which the plaintiff might-possibly be entitled to

relief. In exercising this review, I proceed on the assumption

that “plaintiffs sworn allegations are . . . uncontroverted

and entitled to the usual presumption of truth.” Franklin, 745

F.2d at 1228

My ultimate conclusion is that the multitude of allegations

expressed in the separate compiaints filed 1n the district court

do not qualif\ for further consideration. I agree with the dis

trict court’s conclusion that the allegations are frivolous and

therefore should be dismissed under 28 U.S.C. § 191 S(d)

ll

My point of beginning is a discussion of how the courts

have interpreted the statuton term “frivolous ~ “The court

may dismiss the case if satished that the action 1s frivo-

lous or maiicious.~ 28 U.S.C. § 191 5(d). The most familiar

coun definition of frivolous. that in 4nders v. California, 38¢

U.S. 738 (1967). 1s phrased in the negative. Anders states that

a contention 1s not frivolous if “any of the legal points [are]

arguable on their merits.” /d. at 744. In Franklin, this coun

determined that an action 1s frivolous if it lacks “arguable

substance in law and fact.” Franklin. 745 F.2d at 1227. This

Circuit has accepted the frivolity analysis formulated by the

Court of Appeals for the D.C. Circuit

“A court may dismiss as frivolous complaints recit-

ing bare legai conclusions with no suggestion of sup-

porting fasts estilalin evoats and

sircumsiances of a holix fanciful Kind Similarly. ‘a

complaint conflicting with facts of which the district

court may take judigial noice might also properly be

I. PA Gibson

5 41°

§79 F.2d 709 17 48th Ce 1976)”

dismissed under section 19tSid

Id. at 1228 (quoting Croaf 4 Holland. 655 F.2d 1305

1307-08 (D.C. Car. 19812 (pes cusiam))

This analysis seis out three possible standards for dismiss-

ing acomplaint as frivolous: 1) does the complaint recite bare

legal conclusions without supporting facts” 2) does the com-

plaint postulate wholl fanciful events or circumstances’ 3)

does the complaint confiict with facts of which a court ma}

take judicial notice? (A fourth standard—redundanc, —“as

added by Tnipaiv. First Nat ) Bank & Trust, 821 F.2d 1368

1370(1987)). Judge Schroeder combines the second and third

Franklin standards. She sees the “judicial notuce™ and the

“whollh fanciful” tests as being one In the same. Sec —

Schroeder op. at 14465 (“Onl if the facts alleged are imposs!

ble in light of any judicially noticeable fact may the district

coun And a complaint ‘wholly fanciful’ and hence without

arguable substance in law or fact.”)

As | read Franklin, the “wholly fanciful” and “judicial

notice” standards are two separate possible bases for dism1ss-

ing a complaint as frivolous. Under Franklin, a court ma)

indeed dismiss an action as frivolous if it is “dependent upon

allegations which conflict with facts of which a district court

may take judicial notice.” Schroeder op. at 14464 However

a coun may a/so dismiss as frivolous an action “postulating

events or circumstances of a wholly fanciful kind.” Franklin

at 1228. 1 find Hernandez allegations to be indisputably

wholly fanciful.

“Frivolous.” which UH ebster's Third New International

defines as “of little weight or impo.r1ance having no basis in

HERNANDEZ ¥ DENTON 1447 3

law or fact.” is derived from the Latin “friuolus.” whict

meant “worthless, trashy, insignificant, trifling, silly an

empty.” I believe that Hernandez complaint comes withi!

either the English or Latin definitions established

eal

| turn now to the procedures utilized in the federal cou

in handling prisoner civil rights cases and the relationship o!

those procedures to the determination of frivolity

Il]

As Judge Schroeder notes, this court has adopted the 1

ommendations of the Prisoner Civil Rights Committee of th

Federal Judicial Center (the Committee) relating to se

191 45(d) cases

[The Committee] recommends that the court mah

the frivolity determination before issuing pro t

1 or

protect defendants from the expense and inc

nience of answering a frivolous complaint. Fed

Judicial Center Re niumended Procedur for H

/ , , Poo

a ¢ Pr ner Cir Rigi Ca , 4 i

( r 59 ( LYA

We find persuasive the reasoning of the cases I

ing that courts may dismiss frivolous actions hied

forma pauperis before service of process and adopt

the procedure recommended by the Federal Judic

Center and applied here by the district court

ecause I served as the Federal Judicial Center Comm)

tee’s chair, reference to the reasoning that undergirded tt

Committee’s efforts w guide federal courts in the use of sec

; ‘ 7

1 . ,

mn e's purposes

Fir to evaluate the handling pris

wor f-confinement cases with the purp

mmending such changes as a d t

ease the Capac lo give promy{

nous prisoner Cases

Second. to help federal judges. mag

taff personne eflecti. g €

hese difficult-to-handle case

star ] 4 er > PD ; >

redera lal C¢ Ke

} ner Rio I

f Rig

> nr r y r

& her nafter Rer * T ’ P

mmit deliberations and hear

preser IT tor scas a}

rea that most pris g |

T ae nr [

.

'

cluded prior to tria

I , ° |

Report at 9 omitted

T r r 4 ‘ nmi r » err ‘

To understa the complex p S g tt

ry tocay in this area. or mus K al tne

Hi

pris

S No other judicial system in the S ed

b + . ] kh ’ y) r

I menor b a al iner svsten q

Iino > > +} .

) ) igs be hled b yunsel. Recording Xf

nt soner c¢ ghts actions hled ar rT

p age OF thos ses thal react 1

f ne ( Pe

R k

T + +> ft;

l C4. Annual Reports of the Director t Ad

q * * A

tive Office of the United States Counts (1 9¢

June 30, 1987, there were 2,825 prisoner civil mghts c

pending in the district courts of the Ninth Circuit, id. Tab

C.3A (1987), and 2,765 such cases had been terminated dur

3B (1987). Thus. in a 2

ing the court year. Jd. Table (

447¢ HERnat D

period the cases have increased fron if

11 Circuit hast

an ominous 1600 perceni, and

portionate share of the stress

This being so, we must bade fealty to three important §

we must ensure that meritorious prisoner ci 1] rights cases d

not fall between the cracks. The “cry wolf” syndrome car

affect federal judges, especially district judges and mag

trates. with what we may describe as a kind of jurisprudentia

weariness or fatigue, akin to what the German:

H eltschmerz, that sets in from examining Countiess meriti

petitions. At the same time. we must “protect defer

from the expense and inconvenience of answering a fr

A ¢ 1976 A r y er

complaint.” Franklin. 745 F 2d a

respect our obligation to the federal judiciary to pr

equal justice to all who seek relief in the federa

ensure the maximum delivery of legal services to al! litiga

- pro se as well as those represented Dy

In 1980, when the case load was only hall tna ja

Committee attempted to reso've these tensions 0D) re

mending that in prisoner civil rights complainis the plaint

go beyond the requirement of ordinary notice pleading

Committee would require the plaintiff to set forth the fa

supporting his claim. Admittediy. this 1s a departure Ir

notice pleading requirement set forth in Rule §. FR. ¢ I

but the Committee reasoned that Rule 8 and other pleadir

rules were designed for cases in which the plainufl

sented b, counsel. This exception for pro se prisoner con

plaints was designed to assist the prisoner in seiting fort

the earliest possible moment the facts that formed the basis

his complaint so that the claim could be proper!, evaluated

The Committee also reasoned that this would encourage th¢

prisoner pro se plain'* to te!' his or her story without fear

being injured in the pleading process by not conforming t

the niceties of pleading rules that were designed for the us

“ac renr

as rey

BEST AVAILABLE COPY

gUSC 81915 ouem «

\ ™ the deter tor Al

pon tr tne yuri may en ria

t for d Rule | 2(bK¢

r at 6; ernphasis added The Committe

dismissal with no opportunity to respond when tt

mplaint 1s irreparably frivolous or malicious “/d at 6

pu ( rnia De i ‘ Correction 43) } , fC

ath Cir 7 (no clanm was stated and there wa

jehcie nm the allegations that could be overcon t

amendment) In this respect. the Committee accepted ig

Har $ 1965 statement that a district pudge may disn

she ae ‘ ‘ nr

ghts compla withou pr

" ~ar ears from the mplair

r > ’ od > nr i~ r ree

a = ;

- 4 nif ki sth € of IA S Tr

a4 4 roa . gg

’ he th rule i. ‘

. 4 4 4* 4 ' ,

: nai 7 iZ a

_ Thew ¢ re 1) 4

appea eq c

r , r ’ he mer la mn

. a pla

" +} , ati@ ,

\ b ne pia |

sinter r 4,ery < he was serve

1¢T se r 415d). to which he hied eacer

b

5 the specif nature f the plainnfl tb

ual deficien n his compla

7 amendmer \ ROS F P. a 44>

. 4 & . . <* A , 2

+ » 4rmstrong 4 } ZG aia

wy » « add ‘ spec’ fics of Hernande n

react +} ver ) bier, dey wed

2 ;

yy ees recon ended Forn on 4 ,

14480 HERNANDEZ \. DENTON

July 29, 1982, for on that specific might he went to

sleep early, at approximately 8:00 P.M.. and did not

wake up until after ten (10) hours. the foliowing

morning, at approximately 6:00 A.M. Plaintiff nor-

mally sleeps five (5) hours without awakening. but

on the night of July 29, 1982, he slept about twice as

much as he normally sleeps.

ER 43 at 5-6.

In this complaint, Hernandez alleges a rape by unknown

correctional officers on the basis of putative inferences only.

There is no direct evidence that a rape occurred. Hernandez

concludes he was raped because he found fecal stains on his

teeshirt. slept later than usual. and received.taunts from fel-

low inmates. He suggests that he could not have known about

the actual victimizing of his body because he slept ten hours

that night instead of his normal five. Thus. he would like us

to draw two inferences: that he was drugged. and that because

he was drugged. he was not aware he had been raped by

unknown correcuonal officers

A

An inference 1s a process by which one proposition (a con-

clusion) is arrived at and affirmed on the basis@f one or more

other propositions. which are accepted as the starting point of

the process. Stebbing suggests that an “[iJnference . . . mas

be defined as a mental process in which a thinker passes from

the apprehension of something given. the datum. to some-

thing. the conclusion. reiated in a certain way to the datum

and accepted only because the datum has been accepted.”’

Whether an inference is deductive or inductive depends upon

the nature of the relationship between the proposition that 1s

given and the proposition that 1s inferred. Hernandez asks us

to draw an inductive inference, a conclusion from a congeries

1L Stebbing. A Modern introduction to Logic 211-212 (6th ed 1947)

Hresastizs Distros 144%

of particulars. From the particular facts asserted in his con

plaint. he asks us to draw the conciusion by induction that the

defendants can be held liable

But whether an inference 1s valid. that 1s. whether the con-

clusion is sound and free from flaw, depends upon its logical

force: the question of logical force 1s in turn based on the rea-

sonableness of the conclusion requested to be drawn Accord

ingly. inferences are permitted to be drawn in the law only to

the extent that known human experience dictates that certain

consequences can and do follow from basic circumstantial

facts What has been said in another context 1s relevant here

The court's role 1s especially crucial! when. as here

the plaintiff's case. and therefore the defendant's lia-

bility. is based solely on circumstantia! evidence

The illega! actton must be inferred from the facts

shown at trial Inferred factual conclusions based on

circumstantial! evidence are permitted only wher

and to the extent that. human experience indicates 4

4

robahilits that cerain consequences can anc ¢

Pp iat Ce

follow from the basic circumstantial facts The inter

ences that the coum permits the jun educe in 4

courroom d differ significan from interen

that rational beings reach daily in informally accepr-

ing a probabilits or arming at a conmciusion wher

presented with some hard. or basic evidence Acour

'

permits the yum to draw inferences because of |

shared experience in human endeasors See 2

re

q-~ ~ 4 ¢

rs {cCormick. Handbdook of th

-*

Law of Ex

289-96 (2d edition 1972

Edward J Sweener & Sons Inc Texace 637 F.2d

(3d Cir 1980) I conclude that. under the facts pieadec f

the allegations do not qualify as sound. s2.i¢ inferences The

test for a permissible inference 1s not «nether human exper

ence indicates a remote possifeicty that a particular conciu

sion may be drawn Rather. the testis probability was it more

14482? HERNANDEZ ¥. DENTON

probable than not that these consequences can and do follow

from the narrative or historical facts. In my view. applying

the most generous of standards, the desired conclusion may

not be drawn from the hard facts pleaded here. | further con-

clude that Hernandez can allege no other narrative facts by

amendment that will permit that conclusion to be drawn

B

Even if we were to accept Hernandez’ inference, that he

was in fact the victim of a rape, that inference still does not

point to the liability of the named defendants. The Civil

Rights Act, under which this action was filed, provides

Every person who, under color of [state law]

subjects. or causes to be subjected, any citizen of the

United States to the deprivation of any rights

privileges. or immunities secured by the Constitu-

uon shall be liable to the party injured in an

action at law, suit in equity. or other proper proceed-

} > f 2are

Ing lor rearess

The statute requires that there be an actual connection or

ink between the actions of the defendants and the depriva

tion alleged to have been suffered by the plaintiff. See Afon

Department of Social Servs, 436 U.S. 658, 692 (1978): s

also Rizzo v. Goode, 423 U.S. 362 (1976). This court has held

that “[a] person ‘subjects’ another to the deprivation of a cor

sututional right, within the meaning of section 1983, if he

does an affirmative act, participates in another's affirmative

acts. Or omits to perform an act which he is legally required

d st Causes the deprivation of which complaint is

made.” Johnson v Duffy, $88 F.2d 740, 743 (9th Cir. 1978

[he law is clear that the liability of supervisory personn

be based on more than merely their right to control ott

Herxanpezy DeENTOo" 44%

ers. Afone supra. 436 U.S. at 694 n.S8 At a minimu

appellant :s required to show a causal connection between the

alleged harms suffered and appellees’ actions. The appe

must be shown to be responsible for setting in motion a ser

of acts by others. which the appellees knew or reasonat

should have known would cause the others to infl tit

tional injury upon the plaintiff. Jd. 743-744

ct con

Conclusionary allegations. unsupported by facts

[will be] rejected as insufficient to state a clain

under the Civil Rights Act The plaintiff mu

llec : a+ 1 ‘ene 2 - ft o? .

allege with at least 5 e Cegree of particula

t< hich defendantc «noaced in th anor

acts which defendants engaged at sur

pla nt F< claim

Co { 7 F 2d 4646. 64 ;

R43 tations om

The defendants are the Dir rT n

Superintendent. and member he disciplinan 2

r _—T Th . supnposed!\ estah

SEAL assau sere the dis r fap

nma bs sine ta whatsoever wa 3 >9 ha A

establish the personal in ement in an. allege

appellant bv an he de dJants.e Fade

narticipa r bv wa knowledge 53

r inmates rre nal officers. F

:

ad rc ri rnanc Sta men ra n 4

a 7 . : a sts be Be

Qua areua m

ine tata C de p a

‘ mposing liab he ba .

1¢ “wt an ; om na nd

Lica 3 . . P

14484 HERNANDEZ V. DENTON

follow from basic circumstantial facts. The basic relevant cir-

cumstantial facts here—sleeping late and finding fecal stains

on a tee-shirt—cannot reasonably lead to the conclusion that

the appellees were responsible for the alleged violations. This

is fatal to Hernandez’ case and no amendment can bring it

back to life. No amended statement can establish a causal

connection between the alleged harms suffered and appellees’

actions.

V.

We now tum to the Folsom Prison eighth amendment

claims:

14. Plaintiff alleges that he was placed in cell 812 in

the security housing unit, and was forced to sleep on

a sheet metal bunk without a mattress, for one night.

Plaintiff was forced t8 borrow one blanket from

inmate Raymond Rodnguez, who was housed in the

cell neat to his cell. Plaintiff was subjected to ven

uncomfonable bedding and suffered from freezing

weather conditions. as he was housed in a cell.

located across from broken windows.

15. Plainuff alleges that he was denied footwear.

because no officer in the security housing unit issued

him a pair of shoes ta wear after he was brought from

the psychiatric ward: he was forced to go about with-

Out shoes for approximately thirty (30) davs

The eighth amendment proscribes “cruel and unusual

punishments.” U.S. Const. amend. viii. This proscription

embodies “broad and idealistic concepts of dignity. civilized .

standards, humanity, and decency,” Jackson v. Bishop, 404~

F.2d 571,579 (8th Cir. 1968), against which we must evaluate

penal treatment. The amendment draws its meaning from

HERNANDEZ V. DENTON 14485

“the evolving standards of decency that mark the progress of

a maturing society.” Trop. Dulles. 356 U.S. 86, 101 (i958)

Conduct and punishments which are incompatible with those

standards, or which “involve the unnecessary and wanton

infliction of pain,” are prohibited. Estelle v Gamble, 429 US

97, 102-03 (1976)

Measured against these concepts, sleeping in a bunk with-

Out a mattress for one night cannot possibly rise to the dignity

of an eighth amendment deprivation. Here the majority and

I agree. But I disagree with Judge Schroeder's description of

the facts pleaded by Hernandez on the blanket claim

“Appellant alléges that Re slept without a blanket for an

unspecified amount of time in a room across from broken

windows.” Judge Schroeder's opimion transcript at |4459

Judge Schroeder's characterization of Hernandez’ factua

pleading has no support whatsoever in the complaint Rathe:

as indicated above, al) Hernandez alleged was that he “was

forced to borrow one blanket from Raymond Rodriguez. wh

was housed in the cell next to his cell.” This certainl, does n

qualify as an eighth amendment deprivation. Even if we

assume that going without shoes for 30 days involves “th

unnecessary and wanton infliction of pain.” Hernande

gation that an officer in the security housing unit failed :

issue him a pair of shoes does not rise-to a colorable claim

against the defendants named here. because no one of those

defendants was alleged to be the officer distributing the shoes

a

Under Rizzo » Goode. 423 US 362 (1976). and

Department of Social Servs v Monell. 436 U.S. 638 (1978

the mere right to control others. without any control or direc

tion having been exercised. and without any failure to super-

vise, 1S mot enough to support section 1983 habilit

Accordingly. I believe that this eighth amendment contention

1s controlled by the important precept set forth in Mai» Env-

moto, 633 F.2d 164 (9th Cir. 1980), to wit, that under the

Civil Rights Act, a defendant camnot be charged with respon-

sibility for neglectful acts of subordinates, absent that defen

14486 HERNANDEZ V. DENTON

dant’s direction or participation. /d at 167. The Civil Rights

Act does not permit liability under respondeat superior. Sec

Monell, 436 US. at 694.

I would affirm the district court's dismissal of these claims

Although neither the magistrate nor the district judge dis-

cussed them in the written recommendations or in the opin-

ion, it cannot be said that the district court disregarded these

questions. The entire complaint was dismissed; the com-

plaint included paragraphs 14 and 15; therefore, there can be

no question that these allegations were dismissed. As a

reviewing court, we are in the same position as a district court

to test these contentions to determine whether they have

arguable merit. In my view, they do not.

Vi.

] turn now to the first Vacaville case. In his recommenda-

_ tons, the magistrate referred to the facts Hernandez would

have alleged had he been permitted to amend his complaint

ee ER 21 at 4. The disimet court adopted the magistrate’s

findings and recommendations. I. too. shall proceed as if the

proposed amended complaint were here before me

1. On or about the 29th day of July. 1983. plainuff

alleges that he was ordered to move out of cell L-361.

L-wing. unit IV. on the third floor, into the N-2 wing

dorm. by Correctional Sergeant Anderson

5. Plaintiff alleges that on the 30th day of July. 1983.

he filed an inmate/parolee appeal form (602) with

defendant Hartman’s and defendant Ingle’s office.

wherein plaintiff complained about housing condi-

tions and also claimed that he had found signs and

evidence of sexual assault and rape on his clothing.

and that he believed one or more inmates housed in

the same dorm as him, assaulted and raped him on

the night of July 29, 1983.

HERNANDEZ V. DENTON yN 14487

4

6. Subsequently. plaintiff alleges that he discovered

four needle puncture wounds on different parts of

his bods: on the 2nd day of August, 1983, plaintiff

displayed one needle wound on his right wrist to

defendant Ingle: on the 3rd day of August, 1983.

plainuff displayed the same needle wound to his

supervisor. at the law library. and two more needle

wounds plaintiff had discovered on the calf of each

leg: on the 6th day of August, 1983, plaintiff discov-

ered a fourth needle wound on his left wrist, and dis-

played this needle wound to Officer Kreger, the N-2

wing dorm officer on the second watch. on the same

day plaintiff was given permission to move out of

the N-2 wing dorm and into a single-man cell in the

same wing

9 All the events described 'n paragraph five (5) were

witnessed by inmate Harold Pierce: his affidayit 's

attacked wothis amended pleading as Exhibit G (Ex-

hibit G reads: “Harold Pierce hereby declares

On the night of July 29. 1983. I witnessed inmate

Dushane B-71187 and inmate Millard B-30802

assault and rape inmate Mike Hernandez as he !a

asleep in bed 206 1n the N-2 unit dorm ©

18. Pla:ntuff alleges that on or about the 15in an

16th dass of December. 1983. he found signs and

evidence of rape and sexual assault on his clothing

and reponed it to Officer B. Da Rosa on Dec ember

17, 1983

ER 11 at 3-6

4

The foregoing facts, if believed. do not make out a va

constitutional claim against the prison official detendan

under either the due process clause or the eighth amendment

Again. Hernandez offers no direct evidence that he was raped

He relies only on the suggestion that somehow he was drugged

14488 HERNANDEZ ¥. Dinton

and then raped while asleep. His only effective evidence 1s the

affidavit of Harold Pierce describing events allegedly occur-

ring on the night of July 29, 1983. That affidavit may have

been sufficient to establish a state tort claim against inmates

Dushane and Milliard, but 1 is insufficient to establish that

the named defendants knew or should have known of these

events and taken steps to prevent then. See Procunicr \

Navarette, 434 U.S. 555, 562 (1978), Afar v Enomoto, 633

F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy. 588 F.2d 740.

745 (9th Cir. 1978)

Vil

The remaining appeal also involves events at Vacaville. In

this complaint. appellant alleged he was raped as follows

1. During the night of January 12-13. 1984. by

defendant McIntyre and two inmates. based on nee-

die marks:

2. During the night of January 26-27. 1984. also by

McIntyre and two inmates. based on needle marks

3. During the might of March 22-23. 1984. by

unknown persons but believed to be defendant Per-

domi, based on finding needle marks on his right

wrist On the morning of March 23.

4. During the might of June 28-29. 1984. bs

unknown persons but believed to be defendant Per-

doni, based on finding needle marks on his left arm

right wrist and right ankle on the morning of June

29;

5. On August 4 and August 23, 1984, during the 1:00

P.M.-3:00 P.M. watch, believed to be by defendant

Perdoni, based on appellant's discover of needle

marks;

HERNANDEZ V. DENTON 4489

1

6. On September 11, 1984, during

P.M.-3:00 P.M. watch, by defendants Fitzgerald ar

Price, based on discovery of a needle mark on hi

thumb

On September 16, 1984, during

P.M.-3:00 P.M.. watch, by defendant Price. ba

on discovery of needle marks on his left arm ar

right wrist

8. On September 21, 1984, shortly before 7:00 AM

by defendants Perdoni and/or McIntyre, based

awakening feeling ill and nauseous and discovering

needle marks on his abdomen

9. During the night of September 2¢ Ik

defendant MclIntvre. based on awakening

ver needle marks on his left arm and addon

On Octob ~ Ik4. bv d ja M

based awakening to dis erar Jie mara

x ar

Vurine ‘

984. by defendant M fe ah

n () § 4 n ry

arm anc adgon

> Durine th oh i ~ y

I&4. by defendant Melr ba A ab

A

, "Or mi

Wu . a r i

T

r defe jar Tomlir ba aw ak

dic » e mark n his left arn

h 2 rv nir b I eo

2 a £ )

vf

14490 HERNANDEZ V. DENTON

to discover needle marks on his left wrist and right

leg: and

15. During the early morning hours of December 10

1984, by defendant McIntyre, based on awakening

to discover a needle mark on his right arm

Appellant also alleged that as a result of these various sexual!

assaults and drug injections, he suffered fevers. bacteriologi-

cal skin infections, headaches, nausea, sinus infections and

facial scarring, and that institutional physicians refused his

request for antibiotic medication

A

To place this appea! in perspective, it is helpful at this point

to summarize the other two appeals before us In appea! \

86-2139, in his amended complaint, Hernandez said he had

been raped by correctional officers at Folsom Prison on Ju!

29, 1982. He reached this conclusion in the hypothesis that he

found “signs of rape” on his tee-shirt, to wit. fecal stains. and

that on the morning of July 30, 1982. he was ridiculed t

unidentified correctional officers and inmates about having

been raped the night before. He had no personal recollectior

of having been raped and made no identification of his sur

posed rapist. In appeal No. 87-1693, his proposed amend:

complaint contends that he was again raped—this time at

Vacaville—on precisely the same day of the vear as the }

som rape, but one vear later, on July 29, 1983. Again, he

cluded that he had been raped because he found “eviden

of sexual assault on his clothing, viz, feces and semen stair

on his shirts. He also claimed that he found a needle wound

yn his right wrist on August 2. 1983. two needle wounds

on each of his two legs. on August 3, 1983; and another need

wound on August 6, 1983. This time he alleged that his rapis!

were inmates, not correctional officers. Here. too, he had

personal knowledge of having been raped and made no ide

tification of his alleged rapists

Heenanoez v. Dextor 1449

I now turn to an analysis of the massive complaint invols

ing events at Vacaville in 1984. Here Hernandez alleged tha

he had been raped 21. repeat 21. umes. Hernandez named the

Superintendent of the Cahfornia Medical Facility at Vaca

ville. a correctional heutenant, and sia correctional officers as

| defendants. Of the alleged 21 acts of rape. four were alleged

committed by inmates. Although Correctional Officer Mclr

tyre supposedly committed nine of these rapes. appellant's

| complaint contains no fact capable of establishing that Melr

'

|

|

|

tvre. direct!, or by inference. or any of the other defendants

assaulted him. Here. too, he has no personal recollection of

having experienced these sa\ age assaults His conclusions are

based solel, on the alleged discovery of needle punctures or

his body. After these repeated acts. he complained he suffer

f bacteria and acne on his face

Irrespectise of the outcome of this lhtigation, nm

acknowledged that Hernandez has established a world

capable of qualifying for the Guinness: Book R |

person who has been raped 28 separate umes »

knowing at the time that this was hapf g r >

as an experienced student and researcher in 5

rights petitions. | b ha t apy é

r ‘ f Tt a chee a

ce Th an be und ny g ne t

pella sas Giag F Pr as a

1 eT r irea r “ 3

fe , purp ar 3 7

at at Ala ; Sta ER

a

Eve 4 T Rg apptiia $ fa r

r t ar e d .

7

HER NANDE Dr ,

t {i middle term.’ In a formally va

g al syllogism, the middie term must be distributed in al

ne of the premises. If either the minor tern i}

distributed in the conclusion, it must O« }

ted in the premise in which it originates * Here. the mid

zg

j

needle marks” 1s undistributed in both the major anc

premises. It does not necessarily follow that ai! nee }

ks are evidence of drug ingestion simply because

; See eg. Spencer. Texas, 385 U.S. $54, 569-570 (19¢

“a ss : er F

‘ gism “B™ dis ses the forma) falia iu

term Here the maior term in the syllogisn raf

t tine major premise can De frat t

was raped ]

Mund pt . rmenta

f

‘jis’ 4 ,

‘ ‘

Fe

of

‘

14494 HERNANDEZ V. DENTON

minor premise because it refers only to the defen-

dan. correctional! officials, not the entire universe of correc-

tional onveials.

But even if ernandez’ arguments met the requirements of

formal logical form, they would still contain fatal defects. The

arguments contain material fallacies, that is. errors or eva-

sions that appear only through an analysis of the meaning of

the terms, rather than an analysis of the logical form. For

example, each syllogism is a mon sequitur, an argument exhib-

iting the lack of a logical connection. From the mix of pleaded

facts—needle marks, fecal stains on a tee-shirt. sleeping later

than usual on one occasion—any conclusion pinning liabilit\

on the defendants here is a paradigmatic non sequitur. See

materials collected in R. Aldisen, The Judicial Process 626-87

(1976).

IX.

Ata very minimum, appellant is required to Show a causal

connection between the alleged harms suffered and the

actions of the deferfdants Hernandez’ theors that he was

raped is based only on the factual allegation that he discov-

ered needle marks on his body the morning after the alleged

incidents.

As a matter of law, the conclusion that he had been raped

cannot be drawn as a permissible, let alone a reasonable

inference from the needle marks; a fortiori, the presence of

the needle marks as a major premise cannot by any logical

process lead to a conclusion implicating the named correc-

nonal officials as perpetrators of the rapes.

But what is of paramount importance here is that no

amendment of facts in the complaint can cure this fatality

given the theory advanced and the inferences required. This

is a Classic example of the precept set forth in the H or/c)

Armstrong, and Noll line of cases—if it clearly appears that

™~

>

HERNANDEZ ¥. DENTON 14495

the deficiency in the complaint cannot be overcome by

amendment. the district court may dismiss under section

1915(d) without genuflecting to the needless ritual of giving

the plaintiff the opportunity to amend a second time before

entering an order of dismissal. This precept was reaffirmed as

recently as April 26, 1988, by this court in Albrechi v. Lund,

845 F.2d 193, 195 (1988). (“If the district court determines

that the ‘allegation of other facts consistent with the chal-

lenged pleading could not possibly cure the deficiency,” then

the dismissal without leave to amend is proper.”) (quoting

Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d

1393. 1401 (9th Cir. 1986)).

1 would affirm the judgment of the district court in all

respects for the reasons stated herein. The grand purpose of

prisoner civil rights petitions under section 1983 is to insure

that the structured society within penal institutions possesses

the minimum accoutrements of civilized order. It 1s to elimi-

nate savage and barbarous treatment. It should not be prosti-

tuted by the hallucinations of a troubled man. And that 1s

what we have here

ATTACHMENT Z

IN THE UNITED STATES COURT OF Oe d | L E D

FOR THE NINTH CIRCUIT Aon

FE8 1+ 1389

CATHY A. CATTERSON. CLERK

U. S. COURT OF APPEALS

Nos. 86-2139

87-1693/1694

MIKE HERNANDEZ,

Plaintiff-Appellant,

Vv. D.C.# CV-S-83-645-LKK

GEORGE F. DENTON, et al., ORDER

Defendants-Appellees.

Before: ALDISERT,* WALLACE, and SCHROEDER, Circuit Judges.

The panel as constituted above has voted to deny the

petition for rehearing and to reject the suggestion for rehearing

en banc.

The full court has been advised of the suggestion for

rehearing en banc and no judge of the court has requested a vote

on the suggestion for rehearing en banc. Fed. R. App. P. 35.

The petition for rehearing is denied and the suggestion

for rehearing en banc is rejected.

*Honorable Ruggero J. Aldisert, Senior Unitrd States Circuit Judge

for the Third Circuit, sitting by designation.

CASE TITLE: GEORGE F. DENTON, et al. v. MIKE HERNANDEZ

COURT/CASE NO: | SUPREME COURT NO. 88-2034

PROOF OF SERVICE

I am employed in the County of Sacramento; my business address is

555 Capitol Mall, Suite 950, Sacramento, California. I am over the age of

eighteen years and not a party to the foregoing action.

On July 6, 1989, I served the within

BRIEF OF RESPONDENT RE PETITION FOR CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

on all parties in said action by placing a true cop» thereof enclosed in a sealed

envelope, with postage thereon fully prepaid, in the United States post office

mailbox at Sacramento, California, addressed as set forth below:

JAMES CHING, Supervising Deputy Attorney General

State of California

1515 K Street, Suite 511

Sacramento, California 95814

Mr. Mike Hernandez C-49192

California Medical Facility

P. O. Box 2000

Vacaville, California 95696-2000

I declare under penalty of perjury that the foregoing is true and correct.

Executed on July 6, 1989, at Sacramento, California. .

a”

LM Ce

P. A. Le Doux