Armstrong v. Rushing
| Decision Date | 15 November 1965 |
| Docket Number | No. 20055.,20055. |
| Citation | 352 F.2d 836 |
| Parties | James F. ARMSTRONG, Appellant, v. Dewie RUSHING, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James F. Armstrong, in pro. per.
Roy E. Wolfe, County Counsel, Madera County Govt. Center, Madera, Cal., for appellees.
Before BARNES, HAMLEY and JERTBERG, Circuit Judges.
James F. Armstrong commenced this action against Dewie Rushing to recover damages under the Civil Rights Act, R.S. § 1979 (1875), 42 U.S.C. § 1983 (1964). The district court, on its own motion, and before issuance or service of process upon defendant, dismissed the complaint without leave to amend. Armstrong then took this appeal.1
In his complaint Armstrong alleged as follows: he was arrested on a charge of assault with a deadly weapon. On January 29, 1953, while he was being arraigned on that charge, he was served with another complaint charging assault by means of force likely to produce great bodily injury. While he was being held on these charges, defendant Dewie Rushing, a police investigator of Madera County, made an illegal search of Armstrong's dwelling and an illegal seizure of plaintiff's personal property found therein.
According to the complaint, the illegality of this search and seizure arises from the fact that Rushing had no magistrate's warrant authorizing such a search and seizure, nor did he have the consent or permission of Armstrong.2 As alleged in the complaint, the property seized by Rushing included a tool box, numerous tools used by plaintiff as a technician of internal combustion engines, a food mixer, radio, $975 in cash, notes, papers and contracts. Plaintiff further alleged that he had attempted to file state actions in regard to this property and money but a superior court judge had repeatedly refused to allow plaintiff access to the Superior Court of the State of California in and for the County of Madera.
On his appeal Armstrong presents several arguments, one being that the district court erred in dismissing the action on its own motion and without notice and hearing. Appellee makes no response to this argument.
The district court erred in the respect asserted. See Harmon v. Superior Court, 9 Cir., 307 F.2d 796. In that case, speaking through Judge Duniway, this court said:
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Franklin v. Murphy
...v. Spokane County, Washington, 393 F.2d 330, 333 n. 3 (9th Cir.1968) (procedural protections required) (dictum) and Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir.1965) (procedural protections required) with Crawford v. Bell, 599 F.2d 890, 893 (9th Cir.1979) (procedural protections not re......
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Gaito v. Strauss, Civ. A. No. 65-1018.
...Misc. No. 3323 can be accorded conclusive effect in this action. See: Urbano v. Calissi, 353 F.2d 196 (3d Cir. 1965); Armstrong v. Rushing, 352 F.2d 836 (9th Cir. 1965); Williams v. Murdoch, 330 F.2d 745 (3d Cir. 1964); Harmon v. Superior Court, 307 F.2d 796 (9th Cir. 1962); 1B Moore, supra......
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Hernandez v. Denton
...to amend where "it clearly appears from the complaint that the deficiency cannot be overcome by amendment." Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir.1965). This rule was restated in Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir.1970). It has continued to be the rule in this Circuit......
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Payne v. Superior Court
...prisoners who are plaintiffs in civil actions may secure appointed counsel or the right to appear personally. (See Armstrong v. Rushing (9th Cir. 1965) 352 F.2d 836 (prisoner filing civil rights action denied right to appear personally in court); but see Note, The Indigent's Right to Counse......