Bonanno v. Thomas

• Decision Date: 25 October 1962
• Docket Number: No. 17630.,17630.
• Citation: 309 F.2d 320
• Parties: Salvatore V. BONANNO, Appellant, v. Charles THOMAS, Gordon Selby, Leon Orr, Charles Hodges, Don Rust, Harold Harrett, John Doe Bingaman, John Doe Bentz, John Doe I, John Doe II, John Doe III, John Doe IV, John Doe V, Richard Roe I, Richard Roe II, Richard Roe III, Richard Roe IV, and Richard Roe V, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

309 F.2d 320 (1962)

Salvatore V. BONANNO, Appellant, v. Charles THOMAS, Gordon Selby, Leon Orr, Charles Hodges, Don Rust, Harold Harrett, John Doe Bingaman, John Doe Bentz, John Doe I, John Doe II, John Doe III, John Doe IV, John Doe V, Richard Roe I, Richard Roe II, Richard Roe III, Richard Roe IV, and Richard Roe V, Appellees.

No. 17630.

United States Court of Appeals Ninth Circuit.

October 25, 1962.

Dominic H. Frinzi, Milwaukee, Wis., Paul H. Primock, and W. T. Elsing and Francis R. Crable, Phoenix, Ariz., for appellant.

Merle L. Hansen, City Atty., Leven B. Ferrin, Asst. City Atty., Gibbons, Kinney & Tipton, Phoenix, Ariz., Faulkner, Sheehan & Wiseman, and Harold C. Faulkner, San Francisco, Cal., for appellees.

Before ORR, HAMLEY and MERRILL, Circuit Judges.

HAMLEY, Circuit Judge.

Salvatore V. Bonanno appeals, in part, from a district court judgment dismissing his first amended complaint in this civil rights damage suit, and dismissing the action.

The suit was commenced on May 3, 1961. The City of Phoenix, Arizona, the chief of police of that city, and two detective lieutenants of Phoenix were named as defendants. Defendants filed and noticed for hearing a motion to dismiss the action. On July 13, 1961, no ruling having been made on the motion to dismiss, Bonanno filed his first amended complaint. In this pleading Bonanno named, as additional defendants, five named persons, five "John Does," and five "Richard Roes," all alleged to be Phoenix police officers.

On July 24, 1961, defendants moved to strike certain words from the first amended complaint, and to dismiss that complaint. The record does not indicate that these motions were noticed for hearing or that any hearing was had thereon. On September 20, 1961, an order was entered by minute entry, reading as follows: "It is Ordered that Defendants' Motion to Dismiss First Amended Complaint is granted, and that this action is dismissed."

Bonanno thereupon appealed, but only as to the personal defendants, thereby permitting the judgment of dismissal to stand as to the City of Phoenix.

There are two specifications of error, namely: (1) the first amended complaint states a valid claim for relief under the Civil Rights Act and other general law, and sets forth all jurisdictional requirements;¹ and (2) if the first amended complaint was, in fact, deficient, appellant should have been, but was not, afforded an opportunity to amend that pleading.

We turn to the second of these specifications of error.

In the motion which was acted upon by the district court, appellees sought dismissal of the complaint on the following grounds: (1) the complaint fails to state a claim under any theory upon which relief can be granted by the federal courts, appellant's relief, if any, being available only in the state courts; (2) the complaint framed under the theory of conspiracy fails to state a claim because it is not alleged that plaintiff was discriminated against as a class of persons because of race, religion or nationality; (3) the complaint framed under the theory of conspiracy fails to state a claim because no facts showing a conspiracy are alleged; and (4) the court lacks jurisdiction for the reason that the parties are citizens of the same state and the subject matter presents for determination no question arising under the Constitution of the United States, or otherwise within the jurisdiction of the United States District Court.²

As indicated above, the district court did not state which of these four grounds was relied upon in dismissing the action.

For all that can be determined from the record, the action may have been dismissed on ground (2) listed above, and on no other ground. If so, it would be necessary to reverse in view of our decisions in Cohen v. Norris, 9 Cir., 300 F.2d 24, 29-30, and Marshall v. Sawyer, 9...