Unpublished Disposition, 931 F.2d 61 (9th Cir. 1989)

MEMORANDUM^** 

Ernest Leroy Smith, an Oregon state prisoner, appeals pro se the district court's dismissal of his civil rights action. We have jurisdiction pursuant to 28 U.S.C. § 1291.¹  We review the district court's grant of summary judgment de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), and we affirm in part, and reverse and remand in part.

* Prison Transfer

Smith contends that the defendants deprived him of his right of access to the courts when they transferred him from Oregon state prison to a New Mexico state prison in retaliation for his litigation in Oregon courts. Smith contends that due to his transfer to New Mexico and subsequent transfer back to Oregon, and the resulting destruction of, or delay in receiving, his legal papers, several of his actions pending in this circuit were dismissed and he was unable to appeal those decisions to the United States Supreme Court.

Although prisoners do not have a constitutional right to be held at a particular correctional facility or to be transferred from one facility to another, Meachum v. Fano, 427 U.S. 215, 224-25 (1976), they do have a constitutional right to meaningful access to the courts, Bounds v. Smith, 430 U.S. 817, 828 (1977). This circuit recognizes a first amendment-based interest of prison inmates to be free from prison transfers or reassignments made in retaliation for legal activities. Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985). By retaliating against an inmate for pursuing his legal actions, prison officials interfere with that inmate's access to the courts. Valandingham v. Borjorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). Moreover, Oregon statutes governing the transfer of Oregon inmates to correctional facilities in other states may create substantive restrictions on inmate transfers such that due process protections are triggered when an inmate is transferred contrary to these restrictions. See ORS Secs. 421.245 (codifying Interstate Corrections Compact), 421.284 (codifying Western Interstate Corrections Compact).

The district court properly granted summary judgment in favor of Governor Goldschmidt. The eleventh amendment bars suits against state officials when the state is the real, substantial party in interest. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101 (1984). It does not, however, bar suits seeking to impose personal liability against state officers sued in their individual capacity for alleged violations of federal constitutional or statutory rights. Schuer v. Rhodes, 416 U.S. 232, 238 (1974); Draper v. Coombs, 792 F.2d 915, 919 (9th Cir. 1986). Nevertheless, state officials are not subject to section 1983 liability unless they play an affirmative role in the alleged deprivation of constitutional rights. King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987). Because it is undisputed that Governor Goldschmidt was not personally responsible for any of the actions about which Smith complains, summary judgment was properly granted in his favor.

Judgment also was properly granted in favor of defendant Pearce because state officials sued in their official capacity are entitled to qualified immunity from section 1983 liability. See Davis v. Scherer, 468 U.S. 183, 194 & n. 12 (1984); Wood v. Ostrander, 879 F.2d 583, 591 (9th Cir. 1989), cert. denied, 111 S. Ct. 341 (1990).

The district court's dismissal of defendant Francke in his individual capacity for lack of personal jurisdiction also was correct. Smith failed properly to substitute a predecessor in interest for the decedent and thus, dismissal was required. See Fed. R. Civ. P. 25, 12(b) (2); see also King, 814 F.2d at 567 (pro se litigants must follow same rules of procedure that govern other litigants).

II

Judicial Bias

Smith contends that the district court erred in not appointing a judge from another district to decide his case because every judge in the Oregon district court is biased against him.

The standard for recusal is "whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983). To provide grounds for recusal, prejudice must result from an extrajudicial source. Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (citations omitted). A judge's previous ruling alone is not sufficient bias. Id. (citation omitted). Smith failed to show that any of the Oregon district judges were biased against him and thus, there was no need for his case to be heard by a judge from another jurisdiction.

III

Magistrate's Order

Smith contends that Judge Campos of New Mexico ordered that the Francke estate replace Francke as the defendant in this action. He argues that when his action was transferred to Oregon, however, Magistrate Juba reversed Judge Campos's order and erroneously granted Francke's motion to dismiss. This, he contends, was error because a federal magistrate does not have the authority to overrule the judge's prior ruling.

Smith is mistaken as to what occurred in the district courts. Defendants filed a motion for summary judgment on behalf of Francke alleging that because he was deceased, the action against him must be dismissed. Judge Campos properly denied the motion because both Oregon and New Mexico law provided for substitution of Francke's personal representative as the defendant in Smith's action. Judge Campos did not, however, grant Smith's motion to substitute the estate of Michael Francke as the proper party defendant. Smith thereafter failed to move, within 90 days after the suggestion of death on the record, to substitute in Francke's legal representative as the proper party defendant in the action. Because the "estate of Michael Francke" is not the proper substitute, the district court did not commit any error in dismissing Francke as a defendant. See King, 814 F.2d at 567 (pro se litigants must follow rules of procedure that govern other litigants).

IV

Other Claims

Under Fed. R. Civ. P. 15(a), after twenty days from the date when the initial complaint was served, "a party may amend [its] pleading only by leave of court ... and leave shall be freely given when justice so requires." United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). Courts should allow amendments to pleadings with extreme liberality, particularly where the party who seeks leave to amend is appearing pro se. Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th Cir. 1987).

On November 14, 1988, Smith filed a motion to amend his complaint in the New Mexico district court. He attached a copy of his amended complaint to the motion; the complaint named 12 additional defendants. Neither the district court in Oregon nor the district court in New Mexico ever ruled on his motion. On October 31, 1989, Smith filed another motion to amend his complaint in the district court of Oregon. The motion was filed in response to the defendants' motions for summary judgment. Smith attached a copy of a complaint which appears to be the same as the amended complaint he previously attempted to file, except for the names of several defendants.

The district court denied Smith leave to file an amended complaint because it stated he failed to attach a copy of the proposed amended complaint to his motion, in violation of Local Rule 120-2. This was error. Smith did attach an amended complaint to the second motion and, although it may have been the same amended complaint he previously attempted to file, the district court never allowed him to file it. Thus, we reverse and remand to the district court to give Smith an opportunity to file his amended complaint.

In addition, we note that the district court dismissed the action even though defendant Lane McCotter did not file a dispositive motion on his behalf, and the district court did not address the merits of the claims Smith alleged against him. On remand, the district court should address whether Smith has a claim against McCotter.

AFFIRMED IN PART, and REVERSED AND REMANDED IN PART.