Eugene J. Hutch, Plaintiff-appellant, v. City and County of Honolulu, et al. Defendant-appellee, 967 F.2d 587 (9th Cir. 1992)

MEMORANDUM^** 

Eugene J. Hutch filed a pro se complaint against the City and County of Honolulu alleging violations of 28 U.S.C. § 1983. The district court adopted the findings and recommendations of the magistrate pursuant to 28 U.S.C. § 636(b) (1) and dismissed the case.

The complaint alleges facts which Hutch claims constitute civil rights violations:

1. The failure of City of Honolulu Police Officers to render medical aid to plaintiff when he was assaulted by Terry Lee.

2. The failure of Honolulu Police Officers to follow up with an investigation of the alleged assault.

3. The deliberate indifference of the City of Honolulu in caring for its residents.

4. The filing of unlawful charges against plaintiff and the withholding of $100 bail money for over two years.

5. The improper assignment of defense counsel against plaintiff's desire.

6. The ineffective representation of counsel in insuring a speedy trial.

The magistrate judge concluded that these allegations did not state a claim under § 1983. Allegations 1, 2 and 3 above did not state facts constituting a violation of federal constitutional rights. Item 4 above, may constitute a violation of a property right, but the allegation in the complaint does not state a claim. Items 5 and 6 were held to be appropriate claims in a habeas corpus proceeding but did not state claims under § 1983. We agree with the district court that the complaint was defective in failing to state claims under § 1983 but the district court should have dismissed the complaint without prejudice so that the pro se plaintiff could apply for leave to amend if he sees fit.

REMANDED FOR DISMISSAL WITH LEAVE TO AMEND, NO PARTY TO RECOVER COSTS.