Draper v. Rhay

• Decision Date: 28 February 1963
• Docket Number: No. 18242.,18242.
• Parties: Robert DRAPER, Appellant, v. B. J. RHAY, as Superintendent of Washington State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

315 F.2d 193 (1963)

Robert DRAPER, Appellant, v. B. J. RHAY, as Superintendent of Washington State Penitentiary, Appellee.

No. 18242.

United States Court of Appeals Ninth Circuit.

February 28, 1963.

Robert Draper, in pro. per.

No appearance for appellee.

Before BARNES and DUNIWAY, Circuit Judges, and MADDEN, Judge of the United States Court of Claims.

BARNES, Circuit Judge.

This "appeal" presents more than the usual number of complications present when a layman attempts to appeal and act as his own attorney.

Appellant filed a complaint on December 15, 1961, alleging that appellee Rhay had deprived him, Robert Draper, a state prisoner serving two consecutive terms for robbery, of his civil rights, "by forcing petitioner to work," causing "slavery and peonage." $250,000 in American money is demanded, apparently as damages.

The day previously, the same plaintiff in another matter (No. 1656) had filed a petition for writ of habeas corpus, which had been denied, upon the ground (a) plaintiff was not then being held in confinement under the judgment and sentence plaintiff was then attacking; (b) he had not exhausted his state remedies. Treating the document filed as a petition for a writ of coram nobis, the petition was denied because not directed to the court which actually sentenced plaintiff. At that hearing plaintiff was present, and acted by choice as his own attorney. A transcript of this proceeding is before us.

On December 15, 1961, plaintiff in addition to this complaint alleging peonage and a motion for a restraining order filed in the district court, also filed in the district court (a) a motion addressed to the Supreme Court of the United States for a restraining order; and (b) civil complaints addressed to the Supreme Court of the United States, based on alleged peonage.

Upon hearing of a motion to dismiss, filed by the Attorney General of the State of Washington, a hearing was had and plaintiff was present in court on January 2, 1962. The motion to dismiss was granted on said date.

A letter was written the court by the plaintiff and was treated as a proposed amended complaint. It was received on January 11, 1962, and on January 25, 1962, the court directed the filing of this letter as an amended complaint and required a responsive pleading to be filed by the Attorney General of the State of Washington. On February 12, 1962, an answer was filed by the State.

Meanwhile, on November 29, 1961, plaintiff had filed with this court a petition for a writ of mandamus, Miscellaneous Number 1341, asking us to require the district court to act on plaintiff's complaint. This was denied as moot on January 31, 1962. A purported amendment to the petition for a writ of mandamus was filed with this court on January 26, 1962. On January 31, 1962, this court made the following order in Miscellaneous Number 1387:

"The purported amendment to petition for a writ of mandamus, received by the court on January 26, 1962, cannot be considered as such since the original petition has heretofore been denied. Considering such document a motion for leave to file a new application for a writ of mandamus, the same is denied. If petitioner desires to have such document considered a notice of appeal from the district court order of December 13, 1961, in Cause No. 1675, United States District Court, Eastern District of Washington, Southern Division, he should notify the clerk of this court to that effect and apply to the district court for leave to appeal in forma pauperis. In the event such a motion is denied by the district court it may be renewed here."

Again meanwhile, and on February 8, 1962, plaintiff filed (a) a motion for the issuance of a certificate of probable cause, and (b) a notice of appeal to this court.

On February 16, 1962, plaintiff's "Reply to Respondent's Answer" was filed.

The record before us does not disclose what document was filed by the plaintiff with the Supreme Court of the United States in the matter presently pending therein.¹ However, we note that in No. 817, Miscellaneous (Supreme Court's 1961-1962 Term Calendar), Draper v. Washington, 370 U.S. 935, 82 S.Ct. 1589, 8 L.Ed.2d 806, plaintiff's "Motion for Leave to Proceed in Forma Pauperis" and the "Petition for a Writ of Certiorari" were granted. The case was transferred to the Appellate Docket and placed on the Summary Calendar for argument, immediately following No. 476 (Douglas v. California, 370 U.S. 930, 82 S.Ct. 1579, 8 L.Ed.2d 804). Number 817, Miscellaneous, on the 1961-1962 Calendar became No. 201 on the Appellate Docket, 1962-1963 Term Calendar.

Plaintiff thereafter during the next month made various motions and filed at least four new complaints. On March 20, 1962, the district court heard seven various motions, and on March 28, 1962, ruled on them. The district court also on March 20, 1962, with plaintiff present in court, considered the plaintiff's oral motions (a) to strike the notice of appeal, and (b) to withdraw notice of appeal. The latter motion was granted by order dated March 27, 1962. We have read the transcript of that proceeding.

The court then ordered plaintiff's oral motion granted, allowing him to file an amended complaint, combining in one amended complaint "all claims for relief that the plaintiff now has filed in this cause under seven different complaints." This was filed on March 29, 1962; an answer was filed April 9, 1962.

Plaintiff thereafter made several motions, all denied. He then filed a "Notice of Appeal to the Supreme Court of the United States." Plaintiff's "reply" to respondent's answer was then filed, and various other motions made and denied.

There thus is now pending no appeal filed with or to this court. Technically, nothing is before us. If we assume, however, that the Notice of Appeal to the Supreme Court of the United States is an attempted appeal to this court, we can and will proceed to hear the matter, considering as the Notice of Appeal the document entitled "Motion for Docketing of Appeal" and "Notice of Appearance" attached to the "Opening Appeal Brief and Argument," filed September 21, 1962 in this case.

We note first that appellant complains of matters not before the district court at the time it made its ruling; of matters not before this court at this time — "of all 16 adverse rulings" on various motions made below. Appellant then lists his "Questions Presented"; thirty-four in number, as follows:

"1. Can an administrative agency punish by decree, for an act, when a Court of Law is prohibited from punishing for the same act, by a properly enacted and wholly valid statute.

"2. Does not a special and specific statute govern over general statutes on the same subject.

"3. Can a State enact valid statutes pertaining to the United States Mail, and can such a statute be legally used to nullify United States Constitutional guarantees.

"4. Can a Federal Court protect the civil and Constitutional Rights of a State prisoner when the violations of such, are done under the name of internal discipline by an institution of the State.

"5. Can the pretext of internal discipline by a State institution be legally used to deny United States Constitutional and Civil Rights to a prisoner.

"6. Is not a citizen of the State of Washington also a citizen of the United States of America and therefore entitled to the Civil and Constitutional Rights guaranteed by the United States Constitution.

"7. Is a citizen of the United States entitled to his Constitutional Rights at all times, and to use such.

"8. If a citizen has certain Civil Rights is he entitled to exercise them, and exercise them at all times.

"9. If a citizen has certain Civil Rights can he be denied these Rights for a continuing period of time under the theory that he can bring additional suits for damages, and thereby be denied those Rights.

"10. Is a citizen entitled to use his Civil Rights without having to sue for such.

"11. Who is liable for enforcing an unconstitutional State Statute, the State, or the persons actually enforcing such a Statute, or both.

"12. Is a citizen entitled to seek a determination of his Civil Rights in a United States Court, by right.

"13. Is a citizen entitled to a temporary injunction or other suitable process to protect his Civil Rights until the Cause is determined according to law, by the Courts of this Nation.

"14. Can United States Constitutional Rights be denied or withheld because a State Statute or `process\' is in direct conflict therewith, legally.

"15. Which is controlling the United States Constitution and the decisions of the U. S. Supreme Court, or State Statutes, `process\' and case law.

"16. Do not my United States Civil Rights guarantee me the equal protection of State Statutes and Rights also.

"17. Can any State enact a legal statute which conflicts with the United States Postal Statutes.

"18. Can a citizen be deprived of his Right to contact the courts of this Nation, and to litigate therein, under any theory or reason.

"19. Can slavery and/or peonage and/or involuntary servitude be practiced in this Country, in any manner, before there is a final judgment of conviction for a felonious crime.

"20. Can a citizen, who is not finally convicted of a felonious crime be legally placed in confinement in a penitentiary, against his will.

"21. What are the rights of a citizen who has been convicted of a felonious crime but appeals the conviction, during the time between the finding of guilty, and the decision of the appellate Court, is rendered affirming or reversing the conviction.

"22. When a poor person, a layman, is forced to represent himself before the Courts of this Nation, is it not a denial of due process and/or his Civil Rights, to deny him access to the reference material (books) he needs to litigate, and to establish or help to establish his case.

"23. When a plaintiff seeking relief from alleged violations of his Civil Rights and damages therefore in a United States Court has alleged a

...