Unpublished Disposition, 884 F.2d 1395 (9th Cir. 1988)

MEMORANDUM^** 

Appellant Ernest Le Roy Smith appeals the district court's dismissal with prejudice of his pro se civil rights complaint against several legal officials of the state of Oregon. Because the district court failed to afford Smith an opportunity to amend his complaint prior to dismissal, we reverse and remand for further proceedings with respect to his non-frivolous claims.

Smith is presently serving a 30-year term in New Mexico state prison for an Oregon felony conviction. On September 9, 1988, Smith filed an in forma pauperis civil rights action under 42 U.S.C. §§ 1983 and 1985 alleging a pervasive institutional conflict of interest and/or conspiracy among three individual Oregon officials--the Assistant Attorney General, the State Public Defender, and a Circuit Court judge of Marion County [hereinafter "Legal Defendants"]--as well as other unnamed persons, which deprived Smith and other convicted state felons "similarly situated" of " [the] UNITED STATES CONSTITUTIONAL Guarantees of a fair trial, fair and impartial hearing, a [n] attorney who is a [n] advocate, Due process, etc." Smith also alleged that he, as well as other convicted felons, had been (1) transferred from Oregon state correctional facilities to those in New Mexico, (2) denied meaningful access to legal materials and the courts, and (3) subjected to confiscation and/or destruction of their legal documents in retaliation for their pro se legal efforts on civil rights actions and post-conviction appeals. Smith alleged that the actions of the Legal Defendants violated constitutional rights protected by the first, fourth, fifth, eighth, ninth, tenth, thirteenth, and fourteenth amendments and requested damages and declaratory relief.

Pursuant to 28 U.S.C. § 1915(d), the magistrate recommended that Smith's entire complaint be dismissed as "frivolous" without service of process. In his findings and recommendations, the magistrate briefly addressed each of Smith's claims and concluded that each lacked "arguable substance in law and fact." The district court subsequently adopted the magistrate's recommendations and ordered that Smith's complaint be dismissed with prejudice. Smith filed a timely notice of appeal of the district court's dismissal order.

We begin our discussion of the propriety of the district court's dismissal of Smith's pro se civil rights complaint bearing in mind two separate, yet related, principles. First, we subject to de novo review the district court's determination that Smith's complaint lacked arguable substance in law or fact. Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987); Rizzo v. Dawson, 778 F.2d 527, 529-30 (9th Cir. 1985); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under the frivolity standard of Sec. 1915(d), the issue is whether Smith has presented a "factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded." Franklin, 745 F.2d at 1228.

Second, as a pro se litigant, Smith's complaint must be interpreted with liberality. Hernandez v. Denton, 861 F.2d 1421, 1424 (9th Cir. 1988); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 408 (9th Cir. 1985). To this end, Smith's uncontroverted factual allegations must be afforded the presumption of truth, and to the extent his complaint is deficient, he should be given the opportunity to amend his complaint unless "absolutely clear" that such amendment would not cure his pleading defects. Rizzo, 778 F.2d at 530 (" [P]ro se plaintiffs proceeding in forma pauperis must ... be given an opportunity to amend their complaints unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' ") (citations omitted); see also Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988); Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th Cir. 1987); Noll v. Carlson, 809 F.2d 1446, 1447-48 (9th Cir. 1987); Franklin, 745 F.2d at 1228 n. 9 (9th Cir. 1984).

Many of the claims Smith raises in his complaint are indeed frivolous. Even assuming that Smith's conflict of interest allegations are true, such a conflict provides no basis in law or fact for claims of fourth, fifth, eighth, ninth, tenth or thirteenth amendment violation. Moreover, Smith's Sec. 1985 claim provides no basis for relief as he neither alleges nor implies that the Legal Defendants' actions were motivated by a discriminatory animus. See Karim-Panahi, 839 F.2d at 626; cf. Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980) (remanding pro se Sec. 1985(3) claim for amendment when claim omitted allegation of racial animus but contained factual allegations that plaintiff "was denied medical and health needs ... and that he was a black prisoner").

While more closely approximating a viable claim, Smith's conflict of interest and conspiracy allegation pursuant to Sec. 1983 also proves frivolous. Construed liberally, Smith's complaint appears to allege violation of his sixth amendment right to counsel by operation of the Oregon statutory scheme authorizing the state Attorney General's office to provide legal representation for other state officials--including the Legal Defendants. See Or.Rev.Stat. ("ORS") Sec. 180.060. Such representation by the Attorney General, Smith reasons, compromises the ability of the Legal Defendants to provide fair and unbiased representation and adjudication since, as "clients" of the Attorney General, their interests are now adverse to Smith and other prisoners.

Though imaginative, this right to counsel claim also lacks arguable substance in law and fact. Smith's bare legal allegations of systemic conflict of interest among the Legal Defendants, without supporting facts, warrants dismissal of this claim as frivolous. Hernandez, 861 F.2d at 1425; Franklin, 745 F.2d at 1228; see also Tripati, 821 F.2d at 1370. Moreover, Smith's complaint does not contain allegations sufficient to overcome judicial and prosecutorial immunities with respect to two of the Legal Defendants--the Assistant Attorney General and the circuit judge. See Hernandez, 861 F.2d at 1426 (claim subject to dismissal under Sec. 1915(d) "where the defense is complete and obvious from the face of the pleadings or the court's own record"); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc) (" [A] conspiracy between judge and prosecutor to predetermine the outcome of a judicial proceeding, while clearly improper, nevertheless does not pierce the immunity extended to judges and prosecutors.").

Smith does, however, present claims sufficient to withstand summary dismissal in his allegations of retaliatory transfer and denial of access to courts. Smith's complaint alleges that, in retaliation for his efforts as a "jailhouse lawyer," Oregon officials transferred him to a state prison facility in New Mexico, confiscated and/or destroyed his legal work, and failed, after his transfer to New Mexico, to provide him with access to Oregon state legal authorities relevant to his legal efforts. In dismissing these claims as frivolous, the district court concluded that Smith's retaliatory transfer claim presented no constitutional or statutory bases for relief,¹  and that his right of access claim was fatally defective for failure to name the appropriate party defendants. For the reasons discussed below, we hold that the district court erred in dismissing these claims without leave to amend. Though factually sparse, each of these allegations of official retaliation for the exercise of constitutionally protected rights present cognizable claims under Sec. 1983.

With respect to Smith's retaliatory transfer claim, the district court erred in concluding that Smith presented no legally sufficient claim for relief. This circuit recognizes a first amendment-based interest of prison inmates to be free from prison transfers or reassignments made in retaliation for legal activities. See Rizzo, 778 F.2d at 531; accord Graham v. National Collegiate Athletic Ass'n, 804 F.2d 953, 959 (6th Cir. 1986) (collecting cases); Owens v. Rush, 654 F.2d 1370 (10th Cir. 1981); Buise v. Hudkins, 584 F.2d 223 (7th Cir.), cert. denied, 440 U.S. 916 (1978); Haymes v. Montanye, 547 F.2d 188 (2d Cir. 1976), cert. denied, 431 U.S. 967 (1977).²  Moreover, Oregon statutes governing the transfer of Oregon inmates to correctional facilities in other states may well be interpreted as creating substantive restrictions on inmate transfer decisions such that due process protections are triggered when an inmate is transferred contrary to these restrictions. See ORS Secs. 421.245 (codifying Interstate Corrections Compact), 421.284 (codifying Western Interestate Corrections Compact).³  Accordingly, Smith states a legally cognizable claim for relief by asserting that Oregon officials transferred him to New Mexico in retaliation for his legal activities.

The district court also erred in dismissing Smith's claims that Oregon officials deprived him of his constitutional right of access to courts. It is well-established that incarcerated pro se defendants have a constitutionally protected right of access to state and federal courts. See, e.g., Eldridge, 832 F.2d at 1138; Oltarzewski v. Ruggiero, 830 F.2d 136, 138 (9th Cir. 1987); King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987); Morello v. James, 810 F.2d 344, 346-47 (2d Cir. 1987); Simmons v. Duckhaut, 804 F.2d 182, 183 (1st Cir. 1986). Included within the scope of protections afforded by this right of access is a prisoner's right not to have his or her legal materials confiscated and/or destroyed by prison officials, Morello, 810 F.2d at 346-47 (prison officials violated constitutional right of access to courts by intentionally and selectively taking pro se legal materials of prisoner); Carter v. Hutto, 781 F.2d 1028, 1031-32 (4th Cir. 1986) (same), and the right to meaningful access to the legal authorities necessary to perfect a claim or appeal, Rich v. Zitnay, 644 F.2d 41, 43 (1st Cir. 1981) (federal prisoners transferred from prisons in Maine to Kansas stated claim under Sec. 1983 for violation of their constitutional right of access to courts by alleging that defendant Maine prison officials had failed to provide legal resources on Maine law). Accordingly, Smith's complaint states actionable claims for relief under Sec. 1983 premised on the Oregon officials' alleged confiscation of his legal materials and failure to provide him with Oregon legal authorities relevant to his post-conviction appeals.

Since Smith's right of access claims thus state legally sufficient claims for relief, the district court erred in dismissing these claims for failure to name the appropriate party defendants. The court should have, but did not, give Smith an opportunity to correct this pleading deficiency. See discussion supra p. 3-4. Such amendment would not be futile as Smith could either amend his complaint to explain with greater factual specificity the Legal Defendants' involvement in the deprivation of his constitutional right of access, or, rather, substitute the names of responsible individual prison officials for the "Doe" defendants named in his complaint. See F.R.Civ.P. 15(a) and (c). Of course, the district court on remand should also afford Smith, as necessary, an opportunity to correct any factual or pleading deficiencies in his retaliatory transfer claim as well.

Though Smith's complaint is presently ambiguous with respect to whether he seeks Sec. 1983 relief from the Legal Defendants and the unnamed Oregon officials in their official and/or individual capacities, any clarifying amendments Smith makes on remand concerning the bases of liability for these defendants should not run afoul of eleventh amendment principles. To the extent Smith seeks declaratory relief for ongoing violations of his federal constitutional rights, the eleventh amendment presents no obstacle to either personal-capacity or official-capacity suits seeking prospective relief. Papasan v. Allain, 478 U.S. 265, 277-78 (1986); Scheuer v. Rhodes, 416 U.S. 232, 238 (1974); Clallam County v. Department of Transp., 849 F.2d 424, 427 (9th Cir. 1988), cert. denied, 109 S. Ct. 790 (1989). The eleventh amendment also permits damages actions against state officials provided that the defendant-officials are sued in their individual capacities. Papasan, 478 U.S. 278 n. 11; Scheuer, 416 U.S. at 237-38; Blaylock v. Schwinden, 862 F.2d 1352, 1354 (9th Cir. 1988); Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988) (" [A]n action will not be deemed to be against the state where the plaintiff seeks to impose personal liability on a state official sued in his individual capacity as a result of actions undertaken by that official which violated the plaintiff's federally protected rights.") (emphasis in original); Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988); see generally Kentucky v. Graham, 473 U.S. 159, 165-68 (1985) (discussing distinctions between personal-capacity and official-capacity suits).⁴ 

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

O'SCANNLAIN, Circuit Judge, specially concurring.

While I am not persuaded that the complaint in its present form states sufficient facts to maintain a cause of action, I am persuaded that under Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987), it was error to dismiss the suit without having given the pro se prisoner an opportunity, on the record, to amend his complaint to overcome such factual deficiencies.