309 F.2d 320 (9th Cir. 1962), 17630, Bonanno v. Thomas

Docket Nº:17630.
Citation:309 F.2d 320
Party Name: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.
Case Date:October 25, 1962
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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309 F.2d 320 (9th Cir. 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

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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 he 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...

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