Kenneth Gaut v. Franklin Sunn, Director of Social Services and Housing ( 1986 )

PER CURIAM:

Gaut, a Hawaii state prisoner, appeals from the dismissal of his second amended complaint for failure to state a claim upon which relief can be granted. We reverse.

Gaut brought an action against state prison guards under 42 U.S.C. § 1983 (1982) for deprivation of liberty without due process of law through beatings allegedly inflicted upon him by the guards, and for denial of access to the courts through threats allegedly made by the guards. Gaut also alleged cruel and unusual punishment, a denial of medical care subsequent to the beatings, and vicarious liability on the part of prison administrators. Gaut has failed to argue that the dismissal of these causes of action was error and we do not address them.

Prison beatings which “shock the conscience” are actionable under section 1983. Meredith v. Arizona, 523 F.2d 481, 483 (9th Cir.1975). In Meredith we quoted and adopted the following standard from Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973):

In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

We take the allegations of Gaut’s second amended complaint as true. North Star International v. Arizona Corporation Commission, 720 F.2d 578, 580 (9th Cir.1983). Gaut alleges he was severely beaten, kicked, choked, and thrown against a wall by several guards when he shuffled his feet during a prison “shakedown,” and was beaten again while handcuffed after he was taken to a holding unit. The complaint alleges the type of intentional, unjustified, unprovoked, and brutal conduct we have found to constitute a section 1983 claim in previous cases. See Rutherford v. City of Berkeley, 780 F.2d 1444, 1446-47 (9th Cir.1986); Meredith, 523 F.2d at 484; Gregory v. Thompson, 500 F.2d 59, 61-62 (9th Cir.1974); Allison v. Wilson, 434 F.2d 646, 647 (9th Cir.1970) (per curiam); Allison v. California Adult Authority, 419 F.2d 822, 823 (9th Cir.1969); Wiltsie v. California Department of Corrections, 406 F.2d 515, 516-17 (9th Cir.1968).

Gaut also alleged he was “threatened with bodily harm” by the defendants “to convince him to refrain from pursuing legal redress” for the beatings. This allegation made out a cause of action under section 1983 for denial of Gaut’s right of access to the courts; failure to allege the threats were carried out or that Gaut was deterred from suing did not justify dismissal for failure to state a claim. Lamar v. Steele, 693 F.2d 559, 562 (5th Cir.1982); Hudspeth v. Figgins, 584 F.2d 1345, 1347-48 (4th Cir.1978) (per curiam); Campbell v. Beto, 460 F.2d 765, 768 (5th Cir.1972).

Prisons being the kinds of places that they are, prison guards being the kinds of people that they often are, and prisoners being subject to control under often severe circumstances, we have no doubt that when threats of bodily harm are made against prisoners to discourage them from pursuing legal redress, those threats are likely to be successful. Thus they are an improper interference with the undoubted constitutional right of the prisoner to access to the courts. As to that right, see Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969).

Cases cited by defendants are distinguishable. The holding of McFadden v. Lucas, 713 F.2d 143, 145-47 (5th Cir.1983) (see also Johnson v. Glick, 481 F.2d at 1033, n. 7), that threats alone are not actionable under section 1983 as assaults sufficient to shock the conscience, does not justify dismissal of a section 1983 action alleging use of threats to deny access to the courts. Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.1979) (per curiam), is distinguishable because the threat alleged was regarded as mere verbal harassment.

Neither of Gaut’s claims is precluded by Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Parratt does not apply to substantive due process claims, including Meredith claims. As we said in Rutherford, 780 F.2d at 1447:

Where the denial is of substantive, not merely procedural, due process, the governmental conduct involved would remain unjustified even if there existed the most stringent of procedural safeguards. Because the substantive due process is violated at the moment the harm occurs, the existence of a postdeprivation state remedy should not have any bearing on whether a cause of action exists under § 1983.

Cf. Davidson v. Cannon, — U.S. -, 106 S.Ct. 668, 670-71, 88 L.Ed.2d 677 (1986).

REVERSED and REMANDED.