Unpublished Disposition, 886 F.2d 334 (9th Cir. 1987)

MEMORANDUM^*

OVERVIEW

Darryl Tunstall, a California state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action for failure to state a claim. Tunstall's complaint alleges that he was beaten by a prison guard and that the guard intentionally filed false disciplinary charges against Tunstall.

BACKGROUND

The facts alleged in Tunstall's complaint are as follows. In 1985, Tunstall was a prisoner at San Quentin prison. At breakfast on December 12, 1985, Tunstall complained to the defendant, Sergeant John Beck, about dirt on the prisoners' food trays. Beck responded angrily, swearing at Tunstall.

After breakfast, Tunstall, accompanied by other prisoners, was proceeding to his work station by his ordinary route. Beck ordered Tunstall to come back and go to work by another route. Tunstall had never before been told to take the other route, which took more time. Tunstall returned to where Beck was standing and complained about having to go by the different route. Beck swore at Tunstall. Tunstall told Beck that he thought Beck was retaliating against Tunstall for his earlier complaint. Beck reiterated his order.

Tunstall then started in the direction ordered by Beck. As he walked away, Tunstall threw the residue of his morning coffee, approximately an ounce of coffee, at the wall of a building. He dropped his cup and bent down to pick it up. While Tunstall was bent over, Beck came up from behind, grabbed Tunstall's waist-length hair with both hands, and smashed Tunstall's head into the wall. Beck then spun Tunstall around and, as Tunstall asked why Beck was treating him this way, Beck hit Tunstall in the face.

Other guards then grabbed Tunstall. Beck ordered Tunstall to put his hands on the wall, which Tunstall was unable to do because his arms were confined. Beck tried to hit Tunstall's head against the wall again and then forced Tunstall to the ground by pulling on Tunstall's hair. After Tunstall was prone, Beck put his knee on the back of Tunstall's head, pressing Tunstall's chin into the floor. Tunstall was hand-cuffed and Beck pulled Tunstall to his feet by his hair. Beck then took Tunstall to a segregated lock-up unit.

Tunstall states in his complaint that he made no aggressive moves toward Beck, nor did he attempt to defend himself. Beck's actions caused Tunstall to suffer a bloody lip and a laceration on the side of his head. Tunstall was taken to the prison hospital but no medical treatment was rendered.

Beck filed a report against Tunstall, charging him with assaulting an officer. While the charge was pending, Tunstall was placed in a segregated, security ward. On January 6, 1986, the prison held an administrative hearing on this charge. The hearing officer relied on testimony and reports from the investigating officer, who had interviewed several witnesses to the incident, including two guards. None of these witnesses had seen Tunstall fight back; all of the witnesses had seen Beck grab Tunstall by the hair. Tunstall was found not guilty. On January 27, Tunstall was returned to the general prison population.

PROCEDURAL HISTORY

On December 6, 1986, after unsuccessfully attempting to pursue administrative sanctions against Beck and to seek monetary damages from the California State Board of Control, Tunstall filed this 42 U.S.C. § 1983 action. Tunstall alleged that Beck's physical assault caused Tunstall physical injury, pain and suffering, and emotional distress. He contended Beck's conduct violated his right, under the due process clause of the 14th amendment, to be secure in his person.

Tunstall also alleged that Beck filed disciplinary charges against Tunstall in bad faith, causing Tunstall to suffer wrongful incarceration in segregated confinement and violating Tunstall's asserted fourteenth amendment due process right not to be placed in segregated confinement absent a good faith belief that prison regulations had been violated. Finally, Tunstall alleged that Beck's conduct violated a number of California statutes.

On April 10, 1987, the district court filed an order sua sponte, dismissing Tunstall's complaint for failure to state a federal claim upon which relief could be granted. Tunstall filed this timely appeal.

DISCUSSION

We review dismissals for failure to state a claim de novo. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984). In dismissing for failure to state a claim, courts must accept as true all of the factual allegations in the complaint. Neitzke v. Williams, 109 S. Ct. 1827, 1832 (1989).

All actions by prison guards which would constitute a battery against a prisoner under civil tort law are not necessarily actionable under 42 U.S.C. § 1983. "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers violates a prisoner's constitutional rights." Meredith v. Arizona, 523 F.2d 481, 483 (9th Cir. 1975) (quoting Johnson v,. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973)). In determining whether a prisoner has stated a Sec. 1983 claim on the basis of a prison guard battery, the court may consider several factors including the need for force, whether the force was applied in good faith to restore discipline or maliciously for the purpose of causing harm, the relationship between the need for force and the amount of force which was applied, and the extent of injury inflicted. Id. at 483 (quoting Johnson, 481 F.2d at 1033).

The district court, in applying these four factors, stated that "although the force used by defendant may have been more than necessary in the situation," the facts alleged did not rise to the level of a constitutional violation. Specifically, the court found that, due to Tunstall's defiance, "there was a need for some type of force in the situation" and there was a reasonable relationship between the need for force and the amount of force applied. The court also found that "the facts alleged do not indicate that the force used by defendant was sadistic and malicious and used for the very purpose of causing harm."

We disagree. A pro se complaint must be liberally construed. Haines v. Kerner, 404 U.S. 519, 521 (1972). Liberally construed, Tunstall's complaint alleges that no force was necessary to restore order, since Tunstall was not behaving in a threatening manner and was obeying Beck's command to proceed by the alternate route. The complaint also alleges that, even assuming Beck felt that some force was necessary because of Tunstall's admittedly defiant action in throwing coffee against the wall, Beck continued to apply force after it became clear that Tunstall was not resisting and even after Tunstall had been handcuffed. Tunstall's complaint contains facts which tend to show that Beck had a malicious motive for using force, namely Beck's desire to punish Tunstall for his earlier complaint about the dirty dishes.

Tunstall's complaint sufficiently alleges that the force applied by Beck was excessive in the situation. It also states facts which, if proven, could show that Beck acted out of a desire to harm Tunstall, rather than a need to restore discipline. Ordinarily, questions of a party's motive or intent should not be decided when determining whether a complaint states a cause of action. Franklin v. Oregon, 662 F.2d 1337, 1346 (9th Cir. 1981). Therefore, Tunstall's complaint states a claim under Sec. 1983 for the alleged battery.

II. The Claim of Wrongful Administrative Segregation

Tunstall alleged in his complaint that Beck intentionally filed a false disciplinary charge against him. The filing of this charge caused the prison to hold Tunstall in administrative segregation for six weeks while the prison conducted an investigation, held a hearing on the charge, and then took action to have Tunstall reassigned to the general prison population.

Tunstall has a state-created, constitutionally protected liberty interest in freedom from arbitrary placement and confinement in administrative segregation. Toussaint v. McCarthy, 801 F.2d 1080, 1097-1097 (9th Cir. 1986). The district court found that since the prison relied upon Beck's report in placing Tunstall in confinement, the prison's action was not arbitrary and Tunstall failed to state a claim. While good faith reliance on Beck's report might provide a defense if Tunstall was suing the warden or other prison officials for his confinement, Tunstall is not suing those prison officials. Rather, Tunstall is suing Beck for wrongfully causing the confinement.

Beck's decision to file the disciplinary charge could constitute arbitrary and capricious action if it is true, as Tunstall alleges, that Beck deliberately filed a false charge. This alleged arbitrary action directly caused Tunstall to be deprived of his interest in freedom from administrative confinement and thus could give rise to a due process violation. Therefore, Tunstall's complaint states a cause of action under Sec. 1983 for Beck's allegedly deliberate filing of false charges. Because both of Tunstall's claims state a cause of action under Sec. 1983, we reverse the dismissal of these claims.

After determining that Tunstall had no cognizable federal claims, the district court dismissed the pendent state claims without prejudice. Because we reverse the district court's dismissal of the federal claims, we reverse the dismissal of the pendent state claims as well.

REVERSED AND REMANDED.