Unpublished Disposition, 886 F.2d 1319 (9th Cir. 1988)

MEMORANDUM^**

Merlin E. Gregg, appearing pro se, appeals from the judgment of the district court dismissing his action. Before the final order was issued, interim orders had granted some defendants' motions to dismiss the complaint for failure to state a claim upon which relief could be granted. Fed. R. Civ. P. 12(b) (6).

We affirm in part and reverse in part.

BACKGROUND AND PROCEDURAL FACTS

This action appears to be grounded in a loan transaction between certain of the appellees and Gregg. It seems that after the loan transaction was consummated, Gregg's property may have been subjected to some kind of debt enforcement proceedings, and that Gregg also began having some difficulty with the Internal Revenue Service. Little else is clear from his pleadings.

The procedural status of this case became something of a briar patch. Gregg filed his complaint on June 9, 1987, and set about serving various defendants. Those defendants filed motions to dismiss, but on August 7, 1987, before any of the motions could be heard, Gregg filed an amended complaint. He added some additional defendants.

Thereafter, the following occurred:

(1) On September 30, 1987, the district court granted a motion by Alan Brickley and Safeco Title Insurance Co. to dismiss the original complaint;

(2) On November 27, 1987, the court granted a motion by Brickley to dismiss the amended complaint, but denied Safeco's motion to dismiss that complaint;

(3) On September 30, 1987, the court denied the motion of the Clackamas County Sheriff's Office and the Clackamas County Sheriff, William "Bill" Brooks, to dismiss the original complaint;

(4) On October 19, 1987, the court granted the motion of Robert M. Tague and Darrel Wroten to dismiss the original complaint;

(5) On November 13, 1987, the court granted the motion of the Oregon State Bar Association and Dennis Boardman to dismiss the amended complaint; and

(6) On February 1, 1988, the court granted the motion of the Internal Revenue Service and Dennis Hills to dismiss the amended complaint.

Western Title Company and Michael Higgins had also filed a motion to dismiss the amended complaint. The magistrate recommended granting that motion, but the recommendation was never acted upon. Similarly, as far as the record shows, motions by John F. McGrory, Jr. and Susan Anderson were never specifically acted upon.

Finally, in January of 1988 the magistrate recommended that the action be dismissed since "there are no active defendants remaining in this case." [Findings and Recommendation dated January 13, 1988.] The court accepted that recommendation and the dismissal followed.

At no time was Gregg expressly given leave to amend the complaint.

We review the dismissal of a complaint for failure to state a claim de novo. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621 (9th Cir. 1988), and Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1987).

It is possible that the ultimate dismissal had a lack of prosecution component as to certain of the appellees although that is far from clear. If so, that issue is reviewed for abuse of discretion. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).

DISCUSSION

It is well-settled that a pro se plaintiff must be given leave to amend his complaint "to overcome deficiencies unless it is clear that they cannot be overcome by amendment." Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th Cir. 1987). Other cases have added the adjective "absolutely" before the word "clear." See, e.g., Noll v. Carlson, 809 F.2d at 1448.

In addition, as the court pointed out in Karim-Panahi v. Los Angeles Police Department, 839 F.2d at 623-24:

[B]efore dismissing a pro se's civil rights complaint for failure to state a claim, the district court must give the plaintiff a statement of the complaint's deficiencies. (citations omitted) "Without the benefit of a statement of deficiencies, the pro se litigant will likely repeat previous errors." (citation omitted)

As already noted, Gregg was never expressly told that he could amend his complaint.

It is true that there is authority for the proposition that a dismissal of a complaint under Federal Rule of Civil Procedure 12(b) (6) "carries with it a right to amend...." Scanlon v. Atascadero State Hospital, 677 F.2d 1271, 1272 (9th Cir. 1982), vacated on other grounds, 465 U.S. 1095, 104 S. Ct. 1583, 80 L. Ed. 2d 117 (1984). Since no such concept is actually expressed in the rules, that just seems to be a shorthand way of stating that one cannot bring an appeal as soon as a complaint is dismissed. Jackson v. Nelson, 405 F.2d 872 (9th Cir. 1968). It may also be a way of emphasizing the fact that any litigant should normally be given at least one chance to amend, unless the situation is basically hopeless. See, e.g., Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962). Perhaps more to the point is the fact that in a great many instances the right to amend is almost automatic, since the defendant will not yet have filed an answer, and permission to amend is not even needed. Fed. R. Civ. P. 15(a). See Richardson v. United States, 336 F.2d 265 (9th Cir. 1964). In the case at hand, however, the appellant had already amended his complaint once; he could not amend it again without the permission of the court.

Here for all practical purposes all Gregg knew was that certain motions to dismiss his complaint had been granted as to some of the defendants. He also knew that motions had been denied as to other defendants, and that some motions had not yet been acted upon. If the court intended to permit him to amend, it never gave him a cutoff date for filing a second amended complaint. Moreover, even practicing lawyers are often reluctant to amend a complaint after a dismissal has been granted as to certain defendants, while motions to dismiss are still pending as to others. They recognize that there is an enormous inefficiency in attempting to amend time after time, rather than waiting until all motions have been disposed of.

In any event, Gregg was never told that he could, or should, amend his complaint. The next thing he knew was that his action was dismissed in its entirety.

It is true that Gregg had amended his complaint one time after the initial motions to dismiss were filed. That did not obviate the need for an opportunity to amend after the court agreed that there were deficiencies. Noll v. Carlson, 809 F.2d at 1448.

The above problems with the procedures followed in this case require reversal, unless we decide that the deficiencies in the pleading could not possibly be overcome. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986). For the most part, we are not able to make any such determination on this record.

The fact is that the amended complaint as it now stands borders on the unintelligible, but since Gregg was never given the opportunity to place it in proper legal or factual form--if he can--we are in no position to penetrate the adytum where he now has the facts encased. Given what is before us, we can speculate that he will probably be unable to spell out any more than possible state causes of action. Nevertheless, he should have the opportunity to present proper allegations, which set forth the gravamen of his case in the short and plain manner required by Federal Rule of Civil Procedure 8(a) (2). We do not say he will be successful; we only say that he is entitled to try.

This, however, is not applicable to certain defendants:

(1) Susan Anderson was not served in a timely fashion, or at all. The determination of the district court as to her can properly be sustained under Federal Rule of Civil Procedure 4(j). No abuse of discretion is shown.

(2) By the same token, the Internal Revenue Service and Dennis Hills, in his official capacity, were never properly served. Gregg did not comply with the requirements of Federal Rule of Civil Procedure 4(d) (4) or 4(d) (5). Dismissal was, therefore, proper. Reynolds v. United States, 782 F.2d 837 (9th Cir. 1986). Again, no abuse of discretion is shown.

As to Mr. Hills in his individual capacity, we are urged to make the substantive determination that no cause of action can be stated against him. From the little we have seen in the amended complaint, that may well be true, and that would be particularly so if the principles enunciated in Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) extend into this area also. That is an issue which we do not decide, because Gregg was not given an opportunity to amend his complaint against Mr. Hills.

CONCLUSION

The district court was quite correct when it decided that as to a number of the appellees no claim had been stated by the complaint or the amended complaint. It erred, however, when it did not give Gregg the opportunity to amend. That problem was exacerbated when it denied the motions of some of the appellees, failed to act on those of others, and then dismissed the action in its entirety.

Therefore, the decision of the district court is affirmed as to Susan K. Anderson, as to the Internal Revenue Service, and as to Dennis Hills in his official capacity. In all other respects the decision is reversed, and the case is remanded to the district court, with instructions that the court determine the outstanding and undecided motions, and then forward to Gregg an instruction regarding the complaint's deficiencies and give him an opportunity to amend that pleading.

AFFIRMED IN PART AND REVERSED IN PART AND REMANDED.