Unpublished Disposition, 867 F.2d 613 (9th Cir. 1985)

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U.S. Court of Appeals for the Ninth Circuit - 867 F.2d 613 (9th Cir. 1985)

Melvin Earl FORTE' Plaintiff-Appellant,v.Dennis McWILLIAMS, Programs Coord, Deputy King, Badge 564Sergeant Cushing, Lieutenant Dean Madeira,Defendants-Appellees.

No. 85-2088.

United States Court of Appeals, Ninth Circuit.

Submitted*  Dec. 29, 1988.Decided Jan. 24, 1989.

Before CHOY, TANG and O'SCANNLAIN, Circuit Judges.


Melvin Earl Forte', a state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 civil rights action for failure to state a cognizable federal cause of action. We affirm.


On June 12, 1984, Forte' filed a pro se 42 U.S.C. § 1983 civil rights action alleging a violation of his constitutional right of access to the courts. He named as defendants Dennis McWilliams, Programs Coordinator at the Santa Clara County Main Jail, and three deputy sheriffs, Deputy King, Sergeant Cushing, and Lieutenant Dean Madeira.

In his complaint, Forte' alleged the following facts. He submitted an official form to use the law library and had his name put on the library list for June 3, 1984. Deputy King was responsible for escorting Forte' to the library on that day. When King asked Forte' if he wanted to use the library, Forte' declined, requesting that he be allowed to use the library later in the evening after the exercise and showers period; King advised Forte' that he could go later. However, King failed to take Forte' to the library that night. King subsequently stated that because the library had been in use until 3 a.m. by inmates who were not "compatible" with Forte', he was unable to escort Forte' to the library on June 3.

The district court dismissed the action as to defendants Madeira and Cushing for lack of proximate cause as a matter of law. Defendants McWilliams and King then filed a motion for a more definite statement under Fed. R. Civ. P. 12(e). On April 29, 1985, the district court sua sponte dismissed Forte's complaint with prejudice for failure to state a cognizable federal claim. Forte' timely appeals.


This court reviews de novo a district court's dismissal of an action for failure to state a claim. Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988). To uphold the dismissal, "it must appear to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved." Atiyeh, 814 F.2d at 578.

A court should liberally construe pro se civil rights pleadings, affording the plaintiff the benefit of any doubt. Id. Before dismissing a pro se civil rights action, a district court must advise the plaintiff of the deficiencies in the complaint and afford the plaintiff an opportunity to amend, unless it is absolutely clear that the deficiencies cannot be cured by amendment. Hernandez, slip op. at 14457.

To state a cause of action for violation of civil rights under section 1983, a complaint must allege that a person acting under color of state law deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981). Forte' contends that his complaint states a cognizable section 1983 claim for deprivation of his right of access to the courts. This contention lacks merit.

Forte' relies on Bounds v. Smith, 430 U.S. 817 (1977), to support his assertion that the defendants' actions deprived him of a constitutional right. In Bounds, the Supreme Court held that prison authorities are required to assist prisoners in gaining access to the courts either by providing adequate assistance from persons trained in the law or by providing prisoners with adequate law libraries. Id. at 828.

This broad right of access to the courts is limited, however, by interests of security and orderly prison operations. Oltarzewski v. Ruggiero, 830 F.2d 136, 138 (9th Cir. 1987). In Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 858 (9th Cir. 1985), the Ninth Circuit specifically determined that prison officials could regulate the time, manner, and place in which library facilities are used, pointing out that "the Constitution does not guarantee a prisoner unlimited access to a law library.... The fact that an inmate must wait for a turn to use the library does not necessarily mean that he has been denied meaningful access to the courts."

Deputy King's statement demonstrates that the decision to deny Forte' access to the library on June 3 was based on legitimate security concerns because "incompatible" inmates were using the library at the alternate time. Moreover, Forte' apparently does not dispute the accuracy of King's reason for prohibiting Forte's use of the library at that particular time. In light of Lindquist, the district court correctly determined that Forte' could not state a cognizable claim based solely on this one instance of regulating the time and manner of use of the prison library.1  Therefore, the district court properly dismissed the action.2 



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


The district court's sua sponte dismissal of Forte's action for failure to state a claim may be affirmed even though the court did not give Forte' notice and an opportunity to oppose dismissal. See Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987) (trial court may sua sponte dismiss a claim under Fed. R. Civ. P. 12(b) (6) without notice "where the claimant cannot possibly win relief"); Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981) (sua sponte Rule 12(b) (6) dismissal may be affirmed, despite absence of required notice, where plaintiff cannot possibly win relief)


The bulk of Forte's other contentions on appeal concern what appears to be his misunderstanding of the district court's statement in its dismissal order that "no appearance was made by or on behalf of Plaintiff" at the hearing on defendants' motion for a more definite statement. Forte' apparently believes that his absence from the hearing had something to do with the dismissal of his action. Forte's concern is unwarranted. It does not appear that the district court gave any weight whatsoever to the fact that Forte' did not appear at the hearing

Shortly before this hearing, Forte' filed a motion requesting a later hearing date and complaining that he did not have adequate access to the legal materials and copying equipment necessary to prosecute this action. The record does not indicate that the district court ever ruled on this motion. Nevertheless, because these claims were entirely distinct from the access to courts claim contained in Forte's complaint, they do not warrant reversal of the district court's judgment. Forte' does not contend on appeal that his action should have survived on the basis of these new claims.