Unpublished Disposition, 886 F.2d 1319 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 886 F.2d 1319 (9th Cir. 1989)

Michael Henry FERDIK, Plaintiff-Appellant,v.ARIZONA DEPARTMENT OF CORRECTIONS, et al., Flamenco MentalHealth Center, James McFadden, Warden, K.E.Williams, Captain, Alex Ramero,Defendants-Appellees.

No. 88-1837.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 24, 1989.* Decided Sept. 25, 1989.

Before MERRILL, EUGENE WRIGHT, and BEEZER, Circuit Judges.


This pro se appeal by an Arizona state prisoner involves the dismissal of his complaint under 42 U.S.C. § 1983 against several officials of the State Department of Corrections and the Flamenco Mental Health Center. Michael Henry Ferdik sought damages and injunctive relief, alleging inter alia abusive disciplinary procedures, denial of meaningful access to a law library, and refusal to allow him to call witnesses or present evidence on his behalf in disciplinary proceedings.

Two months later, the district court dismissed the complaint sua sponte on the ground that the allegations were general in nature and failed to state facts showing a constitutional violation of Ferdik's civil rights. The court allowed Ferdik to file a notice of appeal, which was timely done. A time extension was granted and it was implicit that the court found that Ferdik had made a sufficient showing of excusable neglect.

We review de novo the dismissal of a complaint pursuant to 28 U.S.C. § 1915(d). Rizzo v. Dawson, 778 F.2d 527, 529-30 (9th Cir. 1985). Dismissal is appropriate when an in forma pauperis complaint recites only bare legal conclusions without supporting facts, but the pro se litigant must have an opportunity to amend the complaint unless it is absolutely clear that the deficiencies could not be cured by amendment. Franklin v. Murphy, 745 F.2d 1221, 1228 & n. 9 (9th Cir. 1984). The court should explain the deficiency. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

Although Ferdik's allegations did not provide sufficient facts to show that any defendant improperly interfered with his reasonable access to the law library, see Toussaint v. McCarthy, 801 F.2d 1080, 1109 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987), or retaliated against him for filing litigation, see Rizzo, 778 F.2d at 531-32, he may have been able to amend the complaint to provide a sufficient factual basis for those claims. He might also have been able to amend to provide specific instances in which he was denied the opportunity to call a witness at a disciplinary hearing without justification, see Wolff v. McDonnell, 418 U.S. 539, 566 (1974). The district court erred in dismissing the complaint without telling Ferdik what the deficiencies were and giving him an opportunity to amend as to those counts.

However, some of his other claims were properly dismissed. The state agencies from which he sought damages were immune from suit and those claims were barred by the Eleventh Amendment.

Also properly dismissed was his allegation that the disciplinary rules handbooks were confusing and not distributed regularly to inmates. That does not state a constitutional violation, nor does the violation that inmates were placed in administrative segregation without a prior hearing.

Also properly dismissed was his allegation that memos related to disciplinary rules were not posted and were arbitrary and capricious, that inmates are not provided with case or statutory citations during disciplinary proceedings and that their grievances, letters, writeups, and appeals are not returned within the time limits established by the rules.

AFFIRMED in part; REVERSED in part.


The panel unanimously finds this case suitable for decision 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