Unpublished Disposition, 877 F.2d 64 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 877 F.2d 64 (9th Cir. 1989)

John KACHBALIAN, Plaintiff,andBarry Jay Feldman, Plaintiff-Appellant,v.William A. PERRILL, individually and in his officialcapacity as Warden, Robert J. Barncastle, individually andin his official capacity as Associate Warden, FCI Tucson,Peter Swarm, individually and in his official capacity asSpecial Investigation Supervisor, FCI Tucson, James Felix,individually and in his official capacity as Acting ChiefCorrectional Supervisor, FCI Tucson, Jerry T. Williford,individually and in his official capacity as RegionalDirector of Western Regional Office, Federal Bureau ofPrisons, Willis Gibson, individually and in his officialcapacity as Executive Assistant, FCI, Tucson, PeterGonzales, individually and in his official capacity asDistrict Director of the U.S. Customs Service, Nogales,Arizona, Dennis Snyder, individually and in his officialcapacity as Regional Commissioner of the U.S. CustomsService for the Southwest Region, Houston, Texas,Defendants-Appellees.

No. 88-2882.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 1989.Decided June 16, 1989.

Before: TANG, CANBY, and O'SCANNLAIN, Circuit Judges.


We are called upon to decide whether appellant has standing to bring this appeal on behalf of himself or his fellow prisoners, whether appellants' claims are moot, and whether or not appellant's eighth amendment rights were violated by the search conducted by using narcotics dogs.


Barry Feldman filed a complaint signed by himself and four other prisoners ("Feldman" or "appellants") with the district court for the District of Arizona alleging that the prison authorities at the Federal Correctional Institution in Tucson had used narcotic dogs in a "shake-down" search of the prison. They claimed, inter alia, that this search constituted cruel and unusual punishment. The complaint was filed as a Bivens action, and sought money damages and declaratory and injunctive relief. The appellees filed their answer on July 6, 1987 and on January 14, 1988 they filed a motion to dismiss for failure to state a claim. Fed. R. Civ. P. 12(b) (6).

On January 15, 1988, the district court ordered the appellants to file any response to the motion to dismiss on or before February 18, 1988. The court noted that failure to file a response would constitute consent on the part of the appellants to the granting of the motion to dismiss. Only Feldman, as representative of his fellow inmates, filed an opposition to the motion to dismiss. In this response, Feldman admitted that only an eighth amendment claim could be maintained. On March 8, 1988, appellees filed a reply memorandum in support of their motion to dismiss.

On June 14, 1988, the motion to dismiss was granted with prejudice. On June 20, Feldman filed a notice of appeal which lists the appellants as "John Kachbalian, et al." The notice itself says: "Plaintiff Barry J. Feldman, in propria persona, hereby appeals on behalf of all the plaintiffs to the United States Court of Appeals for the Ninth Circuit from the order entered on June 14, 1988 dismissing the case with prejudice. Respectfully submitted, Barry J. Feldman, in propria persona." A motions panel of this court denied appellees' motion to dismiss.

* The district court had jurisdiction of this Bivens action. Schownegerdt v. General Dynamics Corp., 823 F.2d 1328, 1332 (9th Cir. 1987). 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

Feldman attempts to represent himself and several other prisoners in this appeal. The rules of this court, however, require that a person appear either pro se or through his attorney. 28 U.S.C. § 1654. Feldman is not an attorney. This court has held that " [i]nmate writers may assist other prisoners in the preparation of, and filing of petitions for post-conviction relief. No authority authorizes them to engage in the practice of law by filing papers with the court as the inmate's legal representative." Storseth v. Spellman, 654 F.2d 1349, 1355 (9th Cir. 1981) (citations omitted). Therefore, Feldman cannot represent his fellow prisoners in this appeal. His notice of appeal thus could only serve as notice for himself.

Even if Feldman were a lawyer, the appeal would fail with respect to the other claimants because the notice of appeal is defective in failing to name the specific parties appealing. Mehan v. County of Los Angeles, 856 F.2d 102, 105 (9th Cir. 1988). Therefore, only Feldman stands as an appellant before this court. We will review dismissal of his claims under Fed. R. Civ. P. 12(b) (6) de novo, construing the allegations in the light most favorable to him. Evans v. McKay, 869 F.2d 1341 (9th Cir. 1989).


Since Feldman is no longer incarcerated, he has no standing to seek injunctive relief against anyone at the Federal Correctional Institution in Tucson with regard to searches made with guard dogs. See Wiggins v. Rushen, 760 F.2d 1009 (9th Cir. 1985).

However, his eighth amendment claim has been maintained in this appeal insofar as he seeks damages. Appellant alleges that he suffered cruel and unusual punishment in being kept from his cell and having dogs paw over his personal items. This, appellant alleges, was humiliating. It does not constitute cruel and unusual punishment. In Hudson v. Palmer, 468 U.S. 517 (1984), the Supreme Court held that a prisoner has no expectation of privacy in his prison cell. However, " [t]he Eighth Amendment protects prisoners from searches conducted only for "calculated harassment.' " Vigliotto v. Terry, slip op. at 4666 (9th Cir. May 4, 1989) (citing Hudson, 468 U.S. at 530). We held in Vigliotto that the allegations failed to state a cause of action because they did "not describe conduct which is obdurate or wanton or resulting in an unnecessary infliction of pain." Id. at 4667. The use of narcotics dogs and the admitted finding of drugs reveals that this search was neither obdurate nor wanton. Feldman alleges no personal infliction of pain. Since his eighth amendment claim fails, so do his claims for relief.



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