Unpublished Disposition, 875 F.2d 319 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 319 (9th Cir. 1989)

Harry SHORMAN, Plaintiff-Appellant,v.George DEUKMEJIAN, Governor of the State of California inhis official capacity, et al., Defendants-Appellees.

No. 86-2019.

United States Court of Appeals, Ninth Circuit.

Submitted March 14, 1989.* Decided May 16, 1989.

Before BRUNETTI, KOZINSKI and NOONAN, Circuit Judges.


The judgment of the district court is affirmed. Because Mr. Shorman's suit raises only state law issues, it is not within the jurisdiction of the federal courts. Mr. Shorman can seek redress only in the California state courts.

Shorman's motions for oral argument, change of venue, and change of judges are denied.

NOONAN, Circuit Judge, dissenting:

I respectfully dissent. The district court's order declares that Shorman's suit raises only state law issues and is therefore not within federal jurisdiction. Shorman brought an action "under the 14th Amendment to the United States Constitution for violation of due process and equal protection of the laws, 42 U.S.C. § 1983, 28 U.S.C. §§ 2201, 2202, 1331, 1343, violation of California Penal Code Sec. 418, violation of the Berkeley Rent Control Initiative and Law, ... pendant jurisdiction for Negligence, Unlawful Eviction, [and] Breach of Warranty of Habitability."

By its terms, 28 U.S.C. § 1983 imposes liability upon any person who, acting under color of state law, deprives another of a federally protected right. To make out a cause of action under section 1983, plaintiffs must plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986), cert. denied, 107 S. Ct. 928. From the face of the complaint it is apparent that Harry Shorman has set forth the "color of state law" element, because the eviction allegedly took place as an official action of the City of Berkeley. Therefore the crucial question on de novo review is whether Harry Shorman also set forth the second required element, by alleging in some plausible fashion that he has been deprived of a right secured by the Constitution or federal statutes. The complaint alleges violations of the due process clause of the fourteenth amendment. The court's order concludes that there is no plausible basis for such a claim.

A constitutionally protected property interest can be created by an implied contract. Bishop v. Wood, 426 U.S. 341, 344 (1975). The sufficiency of the claim must be decided by reference to state law, id., but the claim itself is a federal one. The court's order collapses this distinction.

Moreover, a number of cases suggest that the due process clause applies when vital necessities are at stake, to assure that individuals have a personal chance to be heard before they are deprived of such necessities. Most famously, the due process clause applies to prevent a state from terminating public assistance payments to a particular recipient without affording that person the opportunity for an evidentiary hearing prior to termination. Goldberg v. Kelly, 397 U.S. 254, 255 (1970).

"That the Due Process Clause applies to a state's suspension or revocation of a driver's license is clear." Mackey v. Montrym, 443 U.S. 1, 10 n. 7 (1979). In Bell v. Burson, 402 U.S. 535 (1971), the Supreme Court ruled that a clergyman involved in an accident could not be constitutionally deprived of his driver's license without a hearing to determine whether he had been responsible for the accident. According to the Court, "Once licenses are issued ... continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees." Id. at 539. The due process clause also applies to a horse trainer's license, a "clear ... property interest" that may not be revoked at will by racing officials. Barry v. Barchi, 443 U.S. 55, 64 (1979).

In Perry v. Sindermann, 408 U.S. 593, 601 (1972), the Supreme Court declared that " [a] person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing." It is plausible to believe that Shorman could invoke the rules or other understandings at a hearing conducted by the City of Berkeley to adjudicate the scope and limits of his rights.

In determining whether a constitutionally protected property interest exists, this court focuses on the importance of the interest to the holder "as an individual." San Bernardino Physicians' Services Medical Group, Inc. v. County of San Bernardino, 825 F.2d 1404, 1409 (9th Cir. 1987) (emphasis in original). It is quite clear that Shorman's interest was of paramount importance to him as an individual.

Shorman has not clearly established that he has a property interest, the deprivation of which violated a constitutionally protected property interest. But courts have sufficient discretion to take account of the special circumstances that often arise in pro se situations. Haines v. Kerner, 404 U.S. 519 (1972) (per curiam). In civil rights cases, where the plaintiff is pro se, this court has an obligation to construe the pleadings liberally and to afford the plaintiff the benefit of any doubt. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (emphasis added).

In this circuit, "when a court dismisses a pro se complaint for failure to state a claim, the court should draft a few sentences explaining to the plaintiff the deficiencies and allow the plaintiff to amend." Hernandez v. Denton, 861 F.2d 1421 (9th Cir. 1988). Although it is not a strict duty, it is possible to say that judges are obliged to instruct litigants, or at least not to mystify them.

Because pro se litigants are unskilled in the law they are prone to pleading errors. Without guidance, amendments by these litigants are made without an understanding of the deficiencies and are usually insufficient to cure deficient pleadings. Thus, when instructing pro se litigants to amend, district courts should briefly explain the complaints' deficiencies so that the pro se plaintiffs will be better equipped to amend correctly. However, if it "is absolutely clear that the deficiencies of the complaint could not be cured by amendment," the district court may dismiss.

Id. at 1423 (citations omitted). Judged by the standards of the Ninth Circuit, the district court's order was unduly cryptic. One can imagine the frustration of a pro se plaintiff who, having alleged that his federal constitutional and statutory rights had been violated, and having cited the fourteenth amendment as well as numerous federal statutes, received an order declaring that the claims asserted were all based on state law. This court should do more than simply repeat the opaque language of the district court.


The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3