909 F. 2d 1489 - Sands v. Arizona Department of Corrections

No. 89-15876.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and POOLE, Circuit Judges, and TERRY J. HATTER, Jr., District Judge.**

MEMORANDUM***

Appellant Royce C. Sands appeals the district court's grant of a directed verdict in favor of various employees and staff of the Arizona Department of Corrections ("ADOC") in his 42 U.S.C. Sec. 1983 action. Sands, a pro se prisoner confined to the custody of the ADOC, alleges appellees were deliberately indifferent to his serious medical needs.

Sands filed his first complaint on April 18, 1984 alleging inadequate psychotherapeutic care. This complaint was dismissed because he did not allege serious mental illness. (ER 3 at 2). Sands filed an amended complaint on June 6, 1984. The district court found that this complaint alleged a constitutional violation but dismissed the complaint against defendants Chuck Ryan, Assistant Director, Adult Institutions and William Rhode, Classification Director for failure to make any allegations against them.

On May 3, 1985, Sands sought to join additional defendants William Rhode, Steve Heliotes and Chuck Ryan. On March 11, 1986, the court held that such individuals could be joined as defendants if Sands filed another amended complaint by April 1, 1986, properly alleging their involvement. Sands complied with the court's order filing his third complaint on March 24, 1986. This complaint named not only the four defendants mentioned in the court's March 11th order but also added nine other defendants who were never previously mentioned.

Fed.R.Civ.P. 21 permits the addition of parties by order of the court on motion of any party. On June 30, 1986 the court struck appellant's third complaint because he did not make a motion to the court to join the nine additional defendants. The court gave Sands until July 11, 1986 to file a fourth complaint naming only four defendants William Rhode, Wayne Dorn, Steve Heliotes and Chuck Ryan. The order specifically prevented him from naming any other defendant. Sands was given an extension until September 15, 1986 to file his fourth complaint. That complaint was filed on September 11, 1986 and with the approval of the court, Peg Ritchie and James Stamps were added as defendants.1 Sands was denied leave to file a fifth complaint which specifically named the Arizona Department of Corrections as a defendant.

The September 11, 1986 complaint seeks declaratory and injunctive relief and money damages. On June 26, 1987, the district court dismissed counts 1 through 12 and 14 through 23 dealing with the ADOC's reclassification policy, for failure to state a claim upon which relief can be granted. Counts 13 and 24 dealing with the appellees' alleged deliberate indifference to Sand's serious medical needs survived.

On June 6, and June 8, 1989 the case went to trial on the remaining two counts. The sole issue left for determination was whether the defendants deliberately or indifferently failed or refused to provide necessary psychological care to the Sands. At the close of Sand's case, the court directed a verdict for appellees. Sands timely appealed.

This court has jurisdiction of this appeal under 28 U.S.C. Sec. 1291.

The standard of reviewing the district court's grant of a directed verdict is whether viewing the evidence in the light most favorable to the plaintiff, the evidence permits only one reasonable conclusion as to the verdict. Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir.1985), cert. denied 475 U.S. 1122 (1986). For those counts which the district court dismissed for failure to state a claim, the standard of review is de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied --- S.Ct. ---- (June 18, 1990).

A. Was the ADOC Properly Named as a Defendant?

The Supreme Court has held that "States or governmental entities that are considered 'arms of the state' for Eleventh Amendment purposes" are not considered persons under Sec. 1983 and therefore are not liable under that statute.2 Will v. Michigan Dep't of State Police, --- U.S. ----, 109 S.Ct. 2304 (1989). Therefore, the district court properly refused to add the ADOC as a defendant in this case for purposes of damages. However, if properly named in the complaint, the ADOC could be sued under Sec. 1983 for prospective relief. Chaloux v. Killeen, 886 F.2d 247, 252 (9th Cir.1989).

There is no question that the September 11, 1986 complaint, which forms the basis for this lawsuit, did not make allegations against the ADOC in the body of the complaint. Although all the complaints Sands lodged, filed or attempted to file in this action named ADOC in the caption none, except the fifth complaint lodged on December 20, 1989, discussed ADOC in the body of the complaint. The court denied Sand's motion to file the December 20th complaint on the grounds that it was "an eleventh hour attempt to expand the lawsuit." (CR 177 at 2).

While the caption of a complaint is helpful to the court it is usually not considered part of the pleader's statement of claim and is not determinative as to the parties to the action. C. Wright and A. Miller Federal Practice & Procedure: Civil, Sec. 1321 at 458-459 (1971). "[T]he caption of an action is only the handle to identify it and ordinarily the determination of whether or not defendant is properly in the case hinges upon the allegations in the body of the complaint and not upon his inclusion in the caption." Hoffman v. Halden, 268 F.2d 280, 303-04 (9th Cir.1959).

Because the ADOC cannot be sued under Sec. 1983 for damages and because Sands failed to make specific allegations requesting prospective relief against it in its complaint, the district court did not err holding that ADOC was not a proper party to the complaint.

B. Was the Directed Verdict Proper as to the Other Defendants?

On June 26, 1987, the district court dismissed most of Sand's claims leaving only counts 13 and 24 dealing with the appellees' alleged deliberate indifference to Sand's need for psychological treatment. The sole question upon which this case went to trial was whether the appellees deliberately or indifferently failed or refused to provide necessary psychological care to Sands.

Sand's complaint of inadequate medical care amounts to a constitutional violation if he alleges "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference means more than mere negligence or isolated occurrences of neglect. Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir.1986), cert. denied 481 U.S. 1069 (1987). Prison officials are deliberately indifferent to an inmate's serious medical needs when they "deny, delay or intentionally interfere with medical treatment." Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir.1988).

The district court held that, while there was sufficient evidence to establish a serious medical need, there was no showing that the defendants in this case were deliberately indifferent. (RT 6/8/89 at 97-98). The record indicates that Sand's had an anti-social personality or a drug-induced disorder but has never been psychotic. Thus, he did not need the care provided for the seriously mentally ill at the Flamenco Unit at Alhambra. Further, Sand's received psychological type counseling at least 24 times over the 1983 to 1986 period. While ideally Sands would have received more counseling, the fact that he was seen a number of times negates a showing of deliberate indifference.

There has been no showing that appellees denied, delayed or intentionally interfered with Sand's medical treatment. While persons committed for mental incapacity have a constitutional right to rehabilitative treatment, Ohlinger v. Watson, 652 F.2d 775, 778-779 (9th Cir.1981), those serving criminal sentences have no constitutional right to rehabilitation. Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir.1985); Hoptowit v. Ray, 682 F.2d 1237, 1255 n. 8 (9th Cir.1982).

Sands alleges that the appellees intentionally interfered with his treatment by not transferring him to the Special Programs Unit. However, as is discussed below, Sands had no constitutional right to be classified to a certain area. Sand's own witness at trial, Dr. Nash, testified that under the best of circumstances the availability of treatment in the Department of Corrections was inadequate. While the other units may not have been as equipped as the Special Programs Unit, Sands did receive some treatment where he was housed.

In light of the foregoing, there was no evidence that appellees were deliberately indifferent to Sand's medical needs. Thus, the district court's did not err in directing a verdict in appellees favor.

Under Hewitt v. Helms, 459 U.S. 460, 468 (1983) there is no liberty interest in classification under the Arizona statutes, and therefore no constitutional violation to support a civil rights action. See also Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 844 (9th Cir.1985) (a prisoner has no right to a work furlough classification). The district court properly dismissed those counts dealing with the reclassification issue.

Sands alleges that the doctrines of res judicata and collateral estoppel somehow prevent the dismissal of the classification counts and the directed verdict on the deliberate indifference issue. He seems to assert that Judge Muecke's opinion in Harris v. Cardwell No. 75-185 (October 10, 1980) and a state court ruling in his child custody case are controlling.

It does not appear that these cases involve the same parties or deal with the same issues as this litigation. Sands was not a party to the Harris case and the named appellees were not a party to the custody case. Therefore, res judicata and collateral estoppel do not impede the district court's rulings in this case.

There is no constitutional right to appointment of counsel in civil rights cases. Storseth v. Spellman, 654 F.2d 1349 (9th Cir.1980). 28 U.S.C. Sec. 1915 confers on the court the discretion to appoint counsel to represent an indigent civil litigant. However, the court has limited the appointment to cases where exceptional circumstances are present.

In making a determination whether exceptional circumstances are present the court must evaluate the likelihood of success on the merits and the ability of plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986).

The district court did not abuse its discretion in declining to appoint counsel for Sands. Most of the counts in his complaint were denied pre-trial and the issues are not so complex that his rights would not be protected without the appointment of counsel.

Sands sought to subpoena a number of witness to trial to testify "just how many members of the [ADOC's] staff had been directly contacted about appellant's need for treatment, ... who each staff person was, and convincingly demonstrate just how big a mess the department's internal management was." Appellees objected to his motion. The district court gave Sands until December 16, 1988 to give the court a list of the order in which he intended to call his proposed witnesses; a brief description of the testimony he intended to elicit; and an estimate of the time he would require of each witness.

Sands did not timely respond to the court's order. Instead he filed a motion to enlarge time to comply, a motion for a stay of the proceedings and a motion to "Supplement Joinder Indispensable Parties by Permission to File a Third Amended Complaint." The new complaint listed nineteen defendants and four causes of action.

We find that the district court did not err in refusing to subpoena Sand's list of witnesses. Sands failed to comply with the court's December 1, 1988 order. Further, the proffered testimony of those witnesses would not have shed light on whether or not appellees were deliberately indifferent to Sand's medical needs. The question was not whether the appellees were aware of Mr. Sand's condition, but rather whether they were deliberately indifferent to it.

Fed.R.Civ.P. 38(b) states that a party may demand a jury trial by serving upon the other parties such demand in writing at any time after the commencement of the action and not later than ten days after the service of the last pleading directed to such issue. Fed.R.Civ.P. 38(d) provides that failure to meet the time deadlines results in waiver. Under the rules of civil procedure the pleadings consist of a complaint, an answer, a reply to a counterclaim, an answer to a cross-claim, a third party complaint, and a third party answer. Fed.R.Civ.P. 7(a). Since there were no counterclaims or cross-claims in this action, the last pleading directed to such issue was the answer.

On March 21, 1986, appellees lodged an answer to Sand's June 6, 1984 complaint. On March 24, 1986 Sands filed another amended complaint. On June 30, 1986 the district court struck appellees' "lodged answer to the aforesaid amended complaint." (CR 57 at 3). It is not clear to which complaint the district court was referring. The only complaint mentioned in the June 30, 1986 order is the amended complaint filed March 24, 1986. However, the only lodged answer in the record is appellees' March 21, 1986 answer which could not have been filed in response to the March 24, 1986 complaint.

On July 21, 1987, for what appears to be the first time in this action, Sands demanded a jury trial. On July 23, 1987, appellees objected to Sand's demand on the ground that the last pleading was their answer which was filed on March 21, 1986 and thus the demand for jury trial was untimely.

Sands filed a reply where he pointed out to the court that appellees' initial answer was stricken by order of the court on June 30, 1986. (CR 159). Appellees responded by stating that the June 30, 1986 order struck their lodged answer to the complaint lodged March 24, 1986 not their March 21, 1986 answer to Sand's June 6, 1984 complaint.

We have combed through the clerks record in this case. Although the court's June 30 order purportedly strikes the answer to the "aforementioned complaint" there is no such lodged answer in the file. The only lodged answer in the clerks record is the one dated March 21, 1986. Further, a copy of the docket in the clerk's record reveals the lodging of only one answer as of September 11, 1986 and that is the one dated March 21, 1986.

On June 30, 1986 the district court struck the only answer filed as of that date by appellees. Because appellees did not file another answer until November 8, 1988, we find Sand's request for a jury trial on July 21, 1987 was timely and the district court's refusal to grant his request was error.

Although the district court erroneously refused Sand's request for a jury trial, reversal is not necessary since the evidence was such that a directed verdict was required as matter of law. Atwood v. Pacific Martime Ass'n, 657 F.2d 1055, 1058 (9th Cir.1981); In re N-500L Cases, 691 F.2d 15, 25 (1st Cir.1982); United States v. Williams, 441 F.2d 637, 644-645 (5th Cir.1971); see also C. Wright and A. Miller, Federal Practice and Procedure: Civil, Sec. 2322 at 105-106 (1971). Even if Sands had a jury trial on the issue of deliberate indifference, the trial judge would have had to direct a verdict in favor of appellees because Sands admits that he was seen at least 24 times by counselors in the 1983-1986 time period and therefore no deliberate indifference could be found.

The district court did not err in granting appellee's motion to dismiss. Nor did the court err in directing a verdict in this case. Although Sands should be lauded for attempting to better himself there has been no showing that appellees were deliberately indifferent to his serious medical needs. The district court's grant of directed verdict and its ruling on the Motion to Dismiss are AFFIRMED.