Unpublished Disposition, 865 F.2d 264 (9th Cir. 1988)

MEMORANDUM^* 

Henderson Duval Houghton appeals pro se the district court's dismissal of his complaint for failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we reverse.

* In December of 1981 Houghton was involuntarily committed to a maximum security unit at the Montana State Hospital at Warm Springs. In November of 1982 Houghton filed a claim for damages under 42 U.S.C. § 1983 against defendant Carroll V. South, Director of the Department of Institutions of the State of Montana. In his complaint Houghton alleged that a policy initiated by South that required the committing court's consent for a change to a less restrictive unit was unconstitutional because the policy was not grounded on any state statute and constituted a denial of due process. Houghton also complained that he was required to wear restraints while being escorted between buildings in violation of his constitutional rights to due process of law.

The district court referred the matter to a magistrate, who found that Houghton had not stated any violations of constitutional rights and recommended that the entire action be dismissed. The district court agreed and in January of 1984 dismissed Houghton's actions for failure to state a claim. Houghton appealed. This court found that South's policy requiring the committing court's consent for a change of status was a reasonable attempt to make uniform the procedures used by patients committed under the criminal statutes to seek approval of a change of status and did not deprive Houghton of his civil rights. Houghton v. South, 743 F.2d 1438, 1440 (9th Cir. 1984). We affirmed the dismissal of the claim of unconstitutionality of this policy, but reversed and remanded as to the claim of the unreasonable restraints because we could not say based on the record that a deprivation of liberty without due process had not occurred. Id.

On remand in October of 1984 the district court again referred the matter to the magistrate, who found that the escort policy involving the restraints was reasonable and recommended that judgment be rendered in favor of South. In September of 1986 the district court adopted these findings and recommendations and granted judgment in favor of South. Houghton does not appeal this ruling. Instead he challenges the reasonableness of the policy concerning changes of status as it applies to him.

II

A dismissal for failure to state a claim is a ruling on a question of law, reviewed de novo. Schlegel v. Bebout, 841 F.2d 937, 941 (9th Cir. 1988). Review is limited to the contents of the complaint. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984).

Fed. R. Civ. P. 15(d) provides that:

[u]pon motion of a party the court may, upon reasonable notice and upon such terms that are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense.

Rule 15(d) is intended to give district courts broad discretion in allowing supplemental pleadings. Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988).

This court has stated that the underlying purpose of Rule 15 is to facilitate decisions on the merits rather than on the pleadings or technicalities. Eldrige v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987). Rule 15's policy of favoring amendments to pleadings should be applied with "extreme liberality," especially to pro se litigants. Id. A pro se litigant bringing a civil rights suit must have an opportunity to amend unless it would be futile to do so. Id. Courts must even instruct pro se plaintiffs how to amend effectively. Id. at 1136.

In his brief before this court, appellant does not address the matter of the reasonableness of the restraints, the issue that was the subject of the district court's dismissal on remand. Instead, Houghton returns to the issue of the constitutionality of defendant's policy requiring the committing court's consent for a change of status. In Houghton v. South, 734 F.2d 1438 (9th Cir. 1984), we rejected only a facial challenge to this policy. We did not address in that first appeal the issue that Houghton now raises: Whether South's policy requiring the committing court's consent for a change of status is constitutional as applied to him. Because of our policy of liberality under Rule 15 for pro se plaintiffs, the district court should have allowed Houghton to supplement his complaint under Rule 15(d) on remand from the first appeal. Houghton could then have alleged an "as applied" challenge to the policy because of the deprivation of liberty suffered by him, which at that time totaled close to three years.

The liberal policy favoring amendments under Rule 15 should be applied as well to supplemental pleadings. As a pro se plaintiff Houghton should be allowed to supplement his complaint to allege an "as applied" claim in light of the more than four years he spent in the maximum security unit as a result of South's policy from the time he was originally placed there until his eventual release in April of 1985. This appears to state a claim of deprivation of liberty without due process under section 1983. See Youngberg v. Romeo, 457 U.S. 307, 321-2 (1982) (involuntarily committed patients have rights to reasonable conditions of safety and are entitled to considerate treatment and conditions of confinement).

We reverse the district court's dismissal of Houghton's complaint and remand to allow Houghton to proceed with a supplemental complaint alleging an "as applied" claim of unconstitutionality of defendant's policy.

REVERSED AND REMANDED.