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holding that plaintiff's claim of deliberate indifference based on defendant registered nurse's refusal to call a doctor to get a script for a soft-food diet for plaintiff has no merit because the result was only a four-day delay in the provision of such a diet
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Argued and Submitted June 10, 1987. Submission Deferred June 12, 1987.
Resubmitted July 10, 1989.
N.D.Cal.
REVERSED AND REMANDED.
On Appeal From the United States District Court for the District of Hawaii. Harold M. Fong, Chief District Judge, Presiding.
On Appeal From the United States District Court for the Northern District of Ca lifornia. Spencer M. Williams, District Judge, Presiding.
Before GOODWIN, Chief Judge, BEEZER and DAVID R. THOMPSON, Circuit Judges.
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 Cir.R. 36-3.
Several groups of plaintiffs filed this consolidated appeal challenging the orders of district courts in Hawaii and California dismissing their suits against former Philippine president Ferdinand E. Marcos, and others, as nonjusticiable under the act of state doctrine. The appellants allege that Marcos and his agents committed various torts against them and their family members by carrying out acts of torture. We deferred submission pending the decision of this court in Republic of the Philippines v. Marcos, 862 F.2d 1355 (9th Cir.1988) (en banc), cert. denied, 109 S.Ct. 1933 (1989). We now reverse and remand.
I
A. The Complaints
1. Sison
In Sison v. Marcos, Florentina Sison, Ramon Sison, and Jose Maria Sison sued in the district of Hawaii on behalf of Francisco Sison, the son of Florentina and the brother of Ramon and Jose Maria. They alleged various torts, including wrongful death and the intentional infliction of emotional distress, stemming from the torture and murder of Francisco Sison in 1971, allegedly at the direction of Marcos and codefendant Fabian C. Ver, former Military Chief of Staff of the Republic of the Philippines. In addition, Jose Maria Sison sued for assault and battery, false imprisonment, and other torts arising out of his detention and torture between 1977 and 1986. Jaime S. Piopongco also joined in Sison, suing for assault; interference with and destruction of a business, and violations of the law of nations arising out of the closure of his radio station upon the declaration of martial law in 1972, and his subsequent arrest and torture.
Ramon Sison and Piopongco are United States citizens. The other plaintiffs are citizens of the Philippines.
2. Trajano
In Trajano, Agapita Trajano, a citizen of the Philippines, sued Marcos, Ver, and Marcos' daughter Imee Marcos, alleging that the defendants were responsible for the kidnapping, torture and murder of her son Archimedes Trajano in 1977. Trajano alleged false imprisonment, wrongful death, kidnapping, and violation of international law on behalf of Archimedes' estate, and the intentional infliction of emotional distress for her own suffering on being shown the tortured body of her son.
3. Hilao
Hilao is a class action in the district of Hawaii by the alleged victims or personal representatives of victims of torture perpetrated by Marcos. The complaint alleged that the plaintiffs were university students and labor organizers who were detained and routinely subjected to electric shock, beatings, Russian roulette, gang rapes, and in some cases murder. They sued for violation of the law of nations, seeking compensatory and punitive damages of $75 million.
4. Ortigas
Ortigas is an action by thirteen Philippine citizens against Marcos in the northern district of California, alleging that they were imprisoned, and in some cases tortured, in violation of the law of nations.
5. Clemente
Clemente is an action by eight Philippine citizens, one of whom had dual American citizenship, alleging the same cause of action as Ortigas.
B. Proceedings in the District Court
Sison, Hilao, and Trajano came before Judge Fong in the district of Hawaii. In each case, Marcos moved for dismissal on a variety of grounds pursuant to Fed.R.Civ.P. 12(b)(6). The district court reviewed the possible jurisdictional bases for hearing the case, noting in particular that it assumed that the Ninth Circuit would follow the holding of the Second Circuit that the federal courts have jurisdiction over a case alleging torture under the alien tort statute, 28 U.S.C. § 1350. See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980).
The court was not required to reach the question of jurisdiction, however, as it held the cases nonjusticiable under the act of state doctrine. The court stated that the inquiry these cases would require into the official acts of a foreign head of state was beyond the capacity or function of the federal courts. Judge Spencer Williams of the Northern District of California repeated Judge Fong's analysis in his dismissal of Ortigas and Clemente under the act of state doctrine.
All plaintiffs timely appealed. Fed.R.Civ.P. 4(a)(1). We have jurisdiction. 28 U.S.C. § 1291. We review these questions of law de novo.
II
The act of state doctrine is the foreign relations equivalent of the political question doctrine. See Marcos, 862 F.2d at 1360. It is a prudential doctrine that prevents the judiciary from embroiling itself in affairs over which it has little or no power. Id. In Marcos, we considered the doctrine's applicability to RICO claims against Marcos that alleged, inter alia, theft, fraud and embezzlement of property, both inside and outside the Philippines. Without needing extensive analysis of whether the alleged acts constituted acts of state, we found the doctrine to be of "little or no applicability" to the situation of a deposed ruler from whom his former domain seeks an accounting. Id. at 1360-61. "Once deposed, [a] dictator will find it difficult to deploy the [act of state doctrine] successfully." Id. at 1360.
We see no material distinctions between these cases and Marcos. Marcos is a private citizen residing in the United States. Neither the present government of the Republic of the Philippines nor the United States government objects to judicial resolution of these claims, or sees any resulting potential embarrassment to any government. The issues raised, although extraordinarily complex, are within the capacity of the courts to resolve.
We therefore reverse the orders of dismissal, and remand for further proceedings. We leave the other issues, notably the difficult question of jurisdiction under 28 U.S.C. § 1350, to the original consideration of the district courts.
REVERSED and REMANDED.