Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1988)

MEMORANDUM^** 

Zane George Rogy, a pro se litigant, appeals the district court's dismissal of his 42 U.S.C. § 1983 action against various members of the Las Vegas Metropolitan Police Department (the police) for failure to state a claim upon which relief can be granted. Rogy contends that the district court erred in dismissing his complaint without first allowing him leave to amend. We agree.

FACTS AND PROCEEDINGS

Rogy brought suit in federal court alleging violations by the police of his civil rights. He alleged that the police attacked him with a trained police dog and beat him in violation of 42 U.S.C. § 1983. Rogy did not mention section 1985 in his complaint, but he alleged that the police "willfully and wantonly" conspired to deprive him or his civil rights. He also claimed that the police violated his rights under 18 U.S.C. §§ 241, 242 (conspiracy), the eighth amendment, and Nev.Rev.Stat. Sec. 212.020 (inhumanity to prisoners).

ANALYSIS

Section 1983 imposes liability on any person who, acting under color of state law, deprives another of a federally protected right. See 42 U.S.C. § 1983 (1982); Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 624 (9th Cir. 1988). "To make out a cause of action under section 1983, plaintiffs must plead that (1) the defendant acting under color of state law (2) deprived the plaintiffs of rights secured by the Constitution or federal statutes." Id. (quoting Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1987), cert. denied, 107 S. Ct. 928 (1987)).

A claim of excessive use of force during an arrest is actionable under section 1983 as a violation of the fourth amendment right to be free from an unreasonable seizure. See Robins v. Harum, 773 F.2d 1004, 1008 (9th Cir. 1985) (citing McKenzie v. Lamb, 738 F.2d 1005 (9th Cir. 1985). Similarly, a claim of excessive force is actionable under section 1983 as a violation of the fourteenth amendment right to substantive due process. See Smith v. City of Montana, 818 F.2d 1411, 1417 (9th Cir.), cert. denied, 108 S. Ct. 311 (1987).

Rogy may be able to state a claim under the fourth or fourteenth amendment.¹  See Robins, 773 F.2d 1008 (fourth amendment); Smith, 818 F.2d 1417 (fourteenth amendment). When the district court dismissed Rogy's complaint for failure to state a claim, it failed to provide a statement of the complaint's deficiencies.

"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.' " See Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 623 (9th Cir. 1988) (quoting Noll v. Karlson, 809 F.2d 1446, 1447 (9th Cir. 1987) (quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (per curiam)). Moreover, the district court must give the plaintiff a statement of the complaint's deficiencies prior to dismissing a pro se civil rights complaint for failure to state a claim. Id.

Because it is not absolutely clear that Rogy could not amend his complaint to allege a constitutional violation under section 1983, the district court erred by not notifying him of the complaint's deficiencies and allowing him leave to amend. See Karim-Panahi, 839 F.2d at 624-25; Noll, 809 F.2d 1449.² 

Section 1985 proscribes conspiracies to interfere with certain civil rights. See 42 U.S.C. § 1985 (1982); Karim-Panahi, 839 F.2d at 626. A claim under section 1985 must allege facts to support the allegation that the defendants conspired together. Karim-Panahi, 839 F.2d at 626.

The district court dismissed Rogy's claim of conspiracy because his complaint did not contain allegations of a "racial or class-based invidiously discriminatory animus." See 42 U.S.C. § 1985(3). Because this deficiency could possibly be overcome by amendment, the district court should have given Rogy the opportunity to amend his complaint. See Karim-Panahi, 839 F.2d at 620; Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980) (where pro se civil rights complaint under section 1985(3) failed to allege conspiracy or class-based animus did allege that plaintiff "was denied medical and health needs at ten different holding facilities, and that he was a black prisoner," deficiencies in complaint could possibly be overcome by amendment).

C. Claims Under the Eighth Amendment and Nev.Rev.Stat. Sec. 212.020

The eighth amendment's prohibition against cruel and unusual punishment protects those convicted of crimes. See Gary H. v. Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987); Ingraham v. Wright, 430 U.S. 651, 654 (1977). Nevada Revised Statute section 212.020 protects prisoners from inhumane treatment. Because Rogy had neither been convicted, nor was he a prisoner, at the time the acts allegedly occurred, the district court properly dismissed his claims under the eighth amendment and under Nev.Rev.Stat. Sec. 212.020.

CONCLUSION

The district court's dismissal of Rogy's claims under the eighth amendment and Nev.Rev.Stat. Sec. 212.020 is affirmed. The dismissal of Rogy's other claims is reversed. This case is remanded to the district court with instructions to grant Roby leave to amend his complaint, and to provide Rogy with a statement of the complaint's deficiencies consistent with this memorandum.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.