Franklin v. Oregon, 662 F.2d 1337 (9th Cir. 12/07/1981)

[1] UNITED STATES COURT OF APPEALS, NINTH CIRCUIT

[2] Nos. 80-3306 to 80-3338

[3] 662 F.2d 1337

[4] Decided: December 7, 1981.

[5] HARRY FRANKLIN, PLAINTIFF-APPELLANT,
v.
STATE OF OREGON, STATE WELFARE DIVISION, ET AL., DEFENDANTS-APPELLEES

[6] Appeal from the United States District Court for the District of Oregon.

[7] John S. Ransom, Ransom, Rogers & Blackman, Portland, Or., for plaintiff-appellant.

[8] Virginia L. Linder, Asst. Atty. Gen., Salem, Or., argued, for defendants-appellees; J. Scott McAlister, Asst. Atty. Gen., Salem, Or., on brief.

[9] Before Sneed and Boochever, Circuit Judges, and Craig,*fn* District Judge.

[10] Author: Boochever

[11] This appeal confronts us with a trial court's efforts to expedite the disposition of numerous complaints filed by a prisoner, pro se. We must determine whether the district court erred in dismissing on its own motion before issuance of summonses thirty-three of Franklin's pro se complaints for which Franklin paid the filing fees.*fn1 We hold that the dismissal of actions on the court's own motion before issuance of summonses is proper only when it is clear that the court lacks jurisdiction. We, therefore, reverse the dismissal of eleven of Franklin's actions over which the court did not clearly lack jurisdiction. We reach this conclusion even though, after issuance of summonses and upon proper motion, the trial court might dismiss these actions for failure to state a claim.

[12] FACTS

[13] Franklin, an Oregon state prisoner representing himself, filed these thirty-three actions from July 1979 to March 1980.*fn2 After the district court denied Franklin in forma pauperis status, Franklin paid the filing fees for all his complaints. The magistrate reviewed twenty-nine of Franklin's complaints and made findings and recommendations. Franklin was given an opportunity to amend twenty-seven complaints, which he did. The magistrate made further findings and recommendations in six cases, and Franklin made further amendments in five of these cases.

[14] The district court, on its own motion and before a summons was issued to any of the defendants, dismissed all thirty-three actions on various grounds, apparently because it believed that they were all frivolous:

[15] For the reasons given, each of these actions should be dismissed. Mr. Franklin may have nothing better to do than to pepper this court with frivolous claims and paper work. This court, however, has better things to do than to canvass all of his complaints (footnote omitted).

[16] While Potter v. McCall, 433 F.2d 1087 (9th Cir. 1970), requires that we be solicitous of pro se pleaders, nothing in Potter requires us to put up with this sort of nonsense, at taxpayers' expense and at the expense of others with claims or defenses of more apparent merit.

[17] I

[18] Sua Sponte Dismissal for Failure to State a Claim

[19] A district court may dismiss an action on its own motion for failure to state a claim, but only after the court takes the proper procedural steps. Dodd v. Spokane County,393 F.2d 330, 334 (9th Cir. 1968). The court must permit issuance and service of process as required by Fed.R.Civ.P. 4(a) and the court must notify the plaintiff of the proposed action and afford him an opportunity to submit written argument in opposition. Id. at 334. In addition, the court must give a statement of the reasons for dismissal, and an opportunity to amend unless the complaint is clearly deficient. Potter v. McCall,433 F.2d 1087, 1088 (9th Cir. 1970); Worley v. California Dept. of Corrections, 432 F.2d 769 (9th Cir. 1970). In this case, the court followed all the procedural steps except issuance and service of process under Fed.R.Civ.P. 4(a).

[20] A literal reading of Fed.R.Civ.P. 4(a) supports the proposition that a summons must be issued before a dismissal for failure to state a claim:

[21] Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to a person specially appointed to serve it.

[22] The only circuit that has specifically addressed the meaning of this sentence in the context of sua sponte dismissals of complaints has held that Rule 4(a) requires "the clerk to immediately issue a summons and deliver it to the marshal for service" without exception. Nichols v. Schubert,499 F.2d 946, 947 (7th Cir. 1974); Vina v. Hub Electric Co., 480 F.2d 1139, 1140 (7th Cir. 1973).

[23] The Second Circuit has reversed several sua sponte dismissals of pro se complaints because a summons was not issued cautioning the district judges "to avoid an inquisitorial role, and not search out issues more appropriately left to a motion by the opposing party." Lewis v. New York,547 F.2d 4, 5 (2d Cir. 1976). See also Mawhinney v. Henderson, 542 F.2d 1 (2d Cir. 1976). The Second Circuit reasoned:

[24] Untimely dismissal may prove wasteful of the court's limited resources rather than expeditious, for it often leads to a shuttling of the lawsuit between the district and appellate courts.... We are confronted (in this case) with a controversy where the defendants refuse to participate because they are not parties and to resolve it at this stage and under these circumstances would be unnecessary and wasteful.

[25] Lewis, 547 F.2d at 6.

[26] We agree that before a summons is issued a district court may not dismiss, sua sponte, for failure to state a claim an action over which it has subject matter jurisdiction. When the district court dismisses an action before issuing a summons, the defendants are not required to respond on appeal because they were not parties to the action below. If we were to ratify the procedure used here, we would have to decide such cases on appeal in a nonadversarial context. In this situation, the magistrate's "Findings and Recommendation" would substitute for the briefs of the defendants. Thus the district court and the magistrate would in effect take the place of the defendants named by the plaintiff. Moreover, although it might be efficient, without considering the effect of possible appeals, for the district court and an expert magistrate to handle prisoner civil rights complaints sua sponte, we question whether the judiciary should expend its resources to decide the merits of these actions without assistance from the defendants.*fn3

[27] In summary, we disapprove of sua sponte dispositions of cases over which the court has jurisdiction because the procedure (1) eliminates the traditional adversarial relationship; (2) causes inefficiencies in the judicial process as a whole; and (3) may give the appearance that the judiciary is a proponent rather than an independent entity.*fn4

[28] II

[29] Dismissal for Lack of Subject Matter Jurisdiction

[30] A judge, however, may dismiss an action sua sponte for lack of jurisdiction. California Diversified Promotions, Inc. v. Musick, 505 F.2d 278, 280 (9th Cir. 1974). In contrast to dismissals for failure to state a claim, if the court lacks subject matter jurisdiction, it is not required to issue a summons or follow the other procedural requirements. Loux v. Rhay,375 F.2d 55, 58 (9th Cir. 1967). In addition, "a suit may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such claim is wholly insubstantial and frivolous." Bell v. Hood,327 U.S. 678, 682-83, 66 S. Ct. 773, 776, 90 L. Ed. 939 (1946).

[31] Although the Supreme Court has questioned the accuracy of calling a dismissal on grounds of insubstantiality jurisdictional, see id. at 683,66 S. Ct. at 776; Rosado v. Wyman, 397 U.S. 397, 404, 90 S. Ct. 1207, 1213-14, 25 L. Ed. 2d 442 (1970), the Court recently reaffirmed the principle. In Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974), the Court explained that

[32] the federal courts are without power to entertain claims otherwise within their jurisdiction if they are "so attenuated and unsubstantial as to be absolutely devoid of merit," "wholly insubstantial," "obviously frivolous," "plainly unsubstantial," or "no longer open to discussion."

[33] Id. at 536-37, 94 S. Ct. at 1379 (citations omitted). The Court further explained the doctrine by quoting from Goosby v. Osser, 409 U.S. 512, 518, 93 S. Ct. 854, 858-59, 35 L. Ed. 2d 36 (1973):

[34] "The limiting words "wholly' and "obviously' have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial ...."

[35] Hagans, 415 U.S. at 537-38, 94 S. Ct. at 1379.*fn5

[36] The Supreme Court has reversed a dismissal for want of subject matter jurisdiction by using the same test as that for dismissal for failure to state a claim: "(A) complaint should not be dismissed ... 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." Scheuer v. Rhodes,416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). It does not matter that recovery appears to be "very remote and unlikely." Id. at 236, 94 S. Ct. at 1686. There are, however, important differences between dismissing a case for lack of jurisdiction and dismissing for failure to state a claim. A dismissal for failure to state a claim requires a judgment on the merits and cannot be decided before the court has assumed jurisdiction. See Bell v. Hood,327 U.S. at 682, 66 S. Ct. at 776; Harmon v. Superior Court, 307 F.2d 796, 798 (9th Cir. 1962).

[37] If the district court dismisses an action after it has addressed the merits of the case, to label the dismissal as one for lack of subject matter jurisdiction is improper. Black v. Payne,591 F.2d 83, 86 n.1 (9th Cir.), cert. denied, 444 U.S. 867, 100 S. Ct. 139, 62 L. Ed. 2d 90 (1979). Dismissal for lack of jurisdiction, of course, does not operate as a judgment on the merits, and thus allows a plaintiff the opportunity to seek relief in the state courts or to assert a claim for which the federal courts have jurisdiction. See Loux,375 F.2d at 57-58.

[38] We hold that a district court cannot dismiss a complaint before it issues a summons, pursuant to Fed.R.Civ.P. 4(a), unless the court clearly lacks subject matter jurisdiction, or lacks jurisdiction because the claim is "wholly insubstantial." Hagans v. Lavine,415 U.S. at 536, 94 S. Ct. at 1378. We, therefore, reverse and remand the dismissal of those of Franklin's civil rights actions that state jurisdictional facts and that are not wholly insubstantial. We affirm the dismissal of the others.

[39] III

[40] Actions Subject to Summary Dismissal

[41] We now consider Franklin's thirty-three complaints and their amendments. Franklin filed several § 1983 actions that not only did not allege the deprivation of any arguable constitutional right, but failed to allege even tortious conduct. In Franklin v. Oregon, No. 80-3306, Franklin alleges that the state welfare division caused his divorce by offering his wife financial assistance. In Franklin v. Collins, No. 80-3311, Franklin alleges that the district attorney refused to prosecute the boyfriend of his minor daughter for statutory rape. In Franklin v. Prisoners Legal Services, No. 80-3322, Franklin contends that the Oregon Prisoners Legal Services refused his request to see one of its lawyers. In Franklin v. Aronson, No. 80-3325, Franklin complains that the state ombudsman did not respond to his requests for help. In Franklin v. Cupp, No. 80-3327, and Franklin v. LeRoy, No. 80-3336, Franklin complains that prison officials refused to issue him new T-shirts to replace his one-year old T-shirts. The district court lacks subject matter jurisdiction over these complaints because none alleges the tortious violation of any federally protected rights. The denomination of these complaints as § 1983 actions does not alone give the district court jurisdiction to hear them.

[42] Franklin also filed several actions that might be cognizable as tort claims in state court but that do not allege the deprivation of any constitutional right or state a federal cause of action. In Franklin v. Armstrong, No. 80-3317, Franklin alleges that two legal letters were lost because the jail allowed prison inmates to handle his mail.*fn6 In Franklin v. Cupp, No. 80-3324, Franklin complains that he suffered extreme discomfort and danger to his health when the prison ventilation system broke down during a summer heat wave. In Franklin v. Yamhill County, No. 80-3332, Franklin contends that a county jail officer improperly placed handcuffs on him so that he could not turn his wrists. In Franklin v. City of Carlton, No. 80-3333, Franklin alleges that an Oregon police officer slandered him. In Franklin v. Brand, No. 80-3335, Franklin brings a malpractice action against the lawyer who handled his appeal. The district court did not have subject matter jurisdiction to consider these claims of tortious conduct because they fail to allege the tortious violation of any federally protected right.

[43] Many of Franklin's actions allege negligence or "harassment" with regard to Franklin's medical problems. Although these actions arguably implicate the Eighth Amendment right to be free from cruel and unusual punishment, we find that in several of the complaints the connection between the allegedly wrongful conduct and the deprivation of the Eighth Amendment right is utterly "insubstantial," Hagans v. Lavine,415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974), and that Franklin fails to show a "deliberate indifference to serious medical needs." See Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976). We, therefore, hold that the district court did not err in dismissing the actions because it lacked jurisdiction.

[44] In Franklin v. Armstrong, No. 80-3317, Franklin complains that a county jail guard delayed in allowing him to see a doctor about serious constipation. In Franklin v. Marlowe, No. 80-3337, he contends that a prison official did not enable him to get a well-balanced breakfast after having received an insulin injection. And in Franklin v. Cupp, Nos. 80-3313, 80-3323, he alleges that prison medical personnel improperly administered insulin, causing soreness and swelling of his arm. These actions allege mere negligence, not deliberate indifference to a serious medical problem sufficient to establish cruel and unusual punishment under the Eighth Amendment.

[45] Franklin brings another medical complaint in Franklin v. Cupp, No. 80-3328. He alleges that the prison clinic took twelve X-rays when two would have been sufficient and alleged that this "undue invation (sic) of personal Bones" was against his religion. At best, the complaint alleged a difference in medical judgment. A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim. Mayfield v. Craven,433 F.2d 873, 874 (9th Cir. 1970). Franklin's complaint does not allege any facts that support federal jurisdiction.