Sires v. Cole, 18537.

• Decision Date: 17 July 1963
• Docket Number: No. 18537.,18537.
• Citation: 320 F.2d 877
• Parties: Richard Eugene SIRES, Appellant, v. W. R. COLE, Judge, Superior Court of Kittitas County, County Court Building Ellensburg, Washington, and Joseph Panattoni, Prosecutor, County Court Building Ellensburg, Washington, and John R. Fox, Deputy Prosecutor, County Court Building Ellensburg, Washington, and The County of Kittitas, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

320 F.2d 877 (1963)

Richard Eugene SIRES, Appellant, v. W. R. COLE, Judge, Superior Court of Kittitas County, County Court Building Ellensburg, Washington, and Joseph Panattoni, Prosecutor, County Court Building Ellensburg, Washington, and John R. Fox, Deputy Prosecutor, County Court Building Ellensburg, Washington, and The County of Kittitas, Appellees.

No. 18537.

United States Court of Appeals Ninth Circuit.

July 17, 1963.

Richard Eugene Sires, in pro. per. No attorneys for appellee.

Before BARNES, HAMLEY and MERRILL, Circuit Judges.

HAMLEY, Circuit Judge.

This is an appeal from a district court order dismissing a civil rights action for damages.

On November 20, 1962, appellant, Richard Eugene Sires, tendered in the District Court for the Eastern District of Washington a complaint in which damages in the sum of thirty thousand dollars were sought. Named as defendants were Kittitas County, Washington, and a superior court judge, the prosecuting attorney and a deputy prosecuting attorney of that county. Jurisdiction was sought to be invoked under the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, 1985, 1987 and 1988.

Sires alleged in his complaint that on March 9, 1959, he was convicted on his plea of guilty to an information charging him with the theft of a calf. He further alleged that whereas this offense is only a misdemeanor, he was sentenced as for a felony. As a result, Sires in effect alleged, he has been confined for a much longer period than authorized by statute and in an institution where only felons may be imprisoned, namely, the Washington State Penitentiary.

Sires also alleged in his complaint:

"The defendants have wilfully and neglectfully abused their duties by accepting such a plea and this trickery was for the sole purpose of imprisoning said petitioner with intent to falsely imprison him, and detain him in the Washington State Penitentiary, without any reasonable or probable cause whatever, for the period of 3½ years, CONTRARY TO THE LAWS OF THIS STATE, and against the will of the people of this State and the will of the plaintiff; whereby the plaintiff was then and there not only greatly hurt, but was exposed to public disgrace, injured in his credit and circumstances, along with physical and mental disorders, and other wrongs the defendants has sic caused to be placed upon the plaintiff."

Upon tendering this complaint Sires moved in the district court for leave to proceed in forma pauperis. The court entered an order granting leave to file the complaint without charge. In the same order, however, the district court ordered that process shall not issue "until otherwise and if subsequently ordered by the Court." On the same day the district court, on its own motion, entered another order requiring Sires to appear on a day to be fixed, to present arguments why the complaint should not be dismissed "as being frivolous and malicious and not stating a cause of action under any applicable statutes or rules of law."

Sires was present at this hearing, held on December 3, 1962. His motion made at the outset of that hearing that counsel be appointed to represent him was denied. The court, however, designated an assistant state attorney general, who was then in the courtroom, as amicus curiae to advise the court in the matter. Sires presented argument in support of his motion and statements were made by amicus curiae.

After taking the matter under advisement the court, on December 7, 1962, entered an order dismissing the action. In this order the court stated that Sires premised his action upon the four following allegations: (1) the information was invalid as it charged theft of one calf when the statute defines the offense as theft of one or more head of neat cattle; (2) his plea of guilty was not supported by testimony; (3) he was tricked into a plea of guilty; and (4) he was charged with a misdemeanor and found guilty of and sentenced for a felony.

The order then sets out the following reasons why the action was being dismissed: (1) it is a collateral attack on a judgment valid on its face and cannot be maintained; (2) the action is being used as a substitute for a petition for writ of habeas corpus; (3) no evidence is required on a plea of guilty as by such plea a defendant waives the formality of a trial; (4) false imprisonment is maintainable only when a person is held without color of legal authority; and (5) the action is not meritorious and should be dismissed.

Upon taking an appeal from this order Sires applied for and was granted, by the district court, leave to appeal in forma pauperis. He appears in this court pro se.¹ Since the district court withheld issuance of process, defendants made no appearance in the district court or in this court.²

On April 4, 1963, while this appeal was pending, the same district court entered an order in another proceeding conditionally granting Sires a writ of habeas corpus with regard to the described conviction and sentence for theft of a calf. In this order it is recited that Sires was charged with a misdemeanor in the information, to which he entered a plea of guilty, but that he was sentenced for a felony "which was an improper sentence as he was not charged with the commission of a felony." The court directed that Sires be returned to the Superior Court of the State of Washington for Kittitas County for entry of a plea, "and if not accomplished in 30 days petitioner to be discharged."³

Shortly after this order was entered in the habeas corpus proceeding, Sires moved in this court for summary reversal of the order of...