Unpublished Disposition, 868 F.2d 1272 (9th Cir. 1981)

MEMORANDUM^* 

Lonnie Ray Carter appeals the district court's grant of summary judgment in favor of defendants Kincheloe, et. al. We reverse.

Carter contends that the district court should have treated defendants' motion for summary judgment as a motion to dismiss for failure to state a claim upon which relief could be granted. Although the district court did not affirmatively indicate that matters outside the complaint were being excluded from consideration, the record indicates that the court did not rely on extra-pleading matters in ruling on the motion. See Lodge 1380, Bhd. of Ry., Airline and S.S. Clerks v. Dennis, 625 F.2d 819, 824-25 (9th Cir. 1980) (language of district court's order, while not explicitly excluding matter outside of pleadings, belied grant of summary judgment). More important, the district court's ruling was based on the legal conclusion that Carter's claim was precluded by the availability of an adequate postdeprivation hearing. Because the district court ruled on the formal sufficiency of the statement of the claim to relief, we conclude that the district court dismissed for failure to state a claim upon which relief could be granted. Id. at 825; see also 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice p 56.02 (2d ed. 1988).

In reviewing a motion to dismiss for failure to state a claim, the court must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Thus, the trial court may not grant a motion to dismiss for failure to state a claim "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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted).

A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). "Rule 15's policy of favoring amendments to pleadings should be applied with 'extreme liberality.' " United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981), quoting, Rosenberg Bros. & Co. v. Arnold, 283 F.2d 406 (9th Cir. 1960) (per curiam). In addition, when dismissing a pro se complaint for failure to state a claim, the trial court should provide some notice of the deficiencies to ensure that the plaintiff has an opportunity to amend effectively his or her complaint. Noll v. Carlson, 809 F.2d at 1448-49; see also Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir. 1970) (per curiam).

Although Carter's allegations are conclusory,¹  he may be able to amend his complaint to allege constitutional violations. For example, Carter is not precluded from adding members of the prison disciplinary committee as defendants to bolster his section 1983 claim. Nor is he foreclosed at this stage from alleging facts, if he has any, stating a section 1985 claim that prison officials conspired to violate equal protection by imposing a sentence that discriminated against him on the basis of race. See Bretz v. Kelman, 773 F.2d 1026, 1027-28 & n. 3 (9th Cir. 1985) (en banc). Carter may also be able to allege facts demonstrating that the conditions in isolation violated the eighth amendment. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986).

Nor does the record indicate that Carter is foreclosed from stating a cognizable procedural due process claim. Defendants concede that Carter was denied procedural due process at the prison disciplinary hearing concerning his January 11, 1981 infraction. Because the denial of due process occurred in the hearing itself, it is not clear that the resulting constitutional violations were the result of random and unauthorized behavior which the state may adequately remedy by postdeprivation procedures, under the rule of Parratt v. Taylor, 451 U.S. 527 (1981). See Logan v. Zimmerman Brush Co., 455 U.S. 422, 436-37 (1982) (Parratt doctrine inapplicable when challenge is to a systematic procedural deficiency or established state procedure); see also Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985) (Parratt analysis inappropriate where prison officials' action followed deficient administrative process). Even if a Parratt analysis is appropriate, the postdeprivation remedy²  Carter received may have been inadequate. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 442 (1976) (liability in damages for unconstitutional or otherwise illegal conduct has the very desirable effect of deterring such conduct) (White, J., concurring) (emphasis supplied); Haygood v. Younger, 769 F.2d 1350, 1357 (9th Cir. 1985) (en banc) (" [p]rocess which follows the loss of liberty can only provide a substitute remedy, usually money damages "), cert. denied, 478 U.S. 1020 (1986) (emphasis supplied).

In sum, the district court erred in failing to notify Carter of the complaint's deficiencies and in denying the motion to amend, since it is not absolutely clear that the deficiencies of Carter's complaint could not be cured by amendment. See Franklin v. Murphy, 745 F.2d 1221, 1228 n. 9 (9th Cir. 1984). In so ruling, we do not predict that Carter can state viable claims; we simply hold that he is entitled to an attempt to do so. The order of dismissal is REVERSED and the matter is REMANDED to the district court to give Carter an opportunity to amend his complaint.

POOLE, Circuit Judge, concurring:

Since it is not clear that appellant could under no circumstances amend his complaint to state a claim for relief, he is entitled to do so. The grant of summary judgment was therefore premature and should be reversed.