DeWitt v. Pail, 20370.
| Decision Date | 08 September 1966 |
| Docket Number | No. 20370.,20370. |
| Citation | 366 F.2d 682 |
| Parties | Daniel DeWITT, Appellant, v. Officer R. F. PAIL, Wesley M. Young, Assistant Superintendent, Southern Conservation Center, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Daniel DeWitt, in pro. per.
Thomas C. Lynch, Atty. Gen. of Cal., Wm. E. James, Asst. Atty. Gen., Anthony M. Summers, Deputy Atty. Gen., Los Angeles, Cal., for appellees.
Before HAMLEY and BROWNING, Circuit Judges, and PLUMMER, District Judge.
Daniel DeWitt, a California state prisoner, brought this civil rights action against two prison officials to recover damages in the sum of $20,000 and to obtain his release from custody. The defendants are R. F. Pail, an officer stationed at the Chino Guidance Center of the California Department of Corrections, and Wesley M. Young, Assistant Superintendent of another California state prison facility which DeWitt describes as "Southern Conservation Center, Department of Corrections." On motion of the defendants the district court dismissed the action. DeWitt appeals.
In his complaint DeWitt alleged, in effect, that as an asserted disciplinary measure because DeWitt was purportedly assisting other prisoners with their legal problems, Officer Pail, acting under authority of state law, on March 10, 1965, confiscated legal papers which DeWitt had in his cell. These papers included a copy of a transcript and other documents which DeWitt needed in taking an appeal from his state judgment of conviction to the California District Court of Appeal, Second District, which appeal was docketed as No. 10623.
Because of the confiscation of these documents, DeWitt alleged, he was disabled from filing his opening brief on this appeal on April 5, 1965, when it was due. Therefore, on March 19, 1965, DeWitt filed a motion with the court named above for an extension of time within which to file his opening brief and for appointment of counsel to assist him. As of May 6, 1965, when he signed his complaint herein, DeWitt had not been advised of the action, if any, taken on this motion.
DeWitt also alleged in his complaint that three days after his legal papers had been confiscated at the Chino Guidance Center, he was transferred to another state prison facility. According to the complaint, DeWitt told Assistant Superintendent Young of the latter institution that court action would be brought in connection with seizure of the papers. Young replied that if DeWitt did this, Young would transfer him back to the Chino institution "* * * and let the petitioner fight it out with them."
Defendants moved to dismiss the complaint on the ground that it did not state a claim upon which relief can be granted (Rule 12b, Federal Rules of Civil Procedure), and upon the further ground that the complaint did not contain a short and plain statement of the claim showing that the pleader is entitled to relief (Rule 8a 2). In granting the motion to dismiss, the district court did not indicate which ground or grounds were found to be meritorious.
The order in question dismisses the complaint, not the action. It is therefore not a final and appealable order unless there are special circumstances which make it clear that the court determined that the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make. See Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 643.
We find such special circumstances here in the fact that the district court issued a certificate of probable cause pursuant to 28 U.S.C. § 2253 (1964), and granted leave to appeal in forma pauperis, as provided for in 28 U.S.C. § 1915 (1964). The district court would not have taken this action unless it had determined that the action could not be saved by amending the complaint, and that the order dismissing the complaint was, in effect, one dismissing the action. The order in question is therefore appealable.
Failure, in an initial complaint, to set forth the claim by means of a short and plain statement, as required by Rule 8(a) (2), is not a ground for dismissal of an action with prejudice, since there are procedures available for correcting a vague or prolix complaint. See Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 235, 79 S.Ct. 760, 3 L.Ed.2d 770. Among such available procedures are those provided for in Rule 12(e), Federal Rules of Civil Procedure (); Rule 12(f) (); Rule 15 (right to amend); Rule 16 (); Rules 26-37 (depositions and discovery).1
This leaves for consideration the question of whether the complaint in its present form fails to state a claim upon which relief can be granted and, if so, whether the district court correctly determined that the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make.
A complaint is not subject to dismissal upon the ground that it fails to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed. 2d 80; Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 647. In applying this test it is to be borne in mind that the spirit of the Federal Rules of Civil Procedure requires us to construe the pleadings most strongly in favor of the pleader. Metropolitan Life Ins. Co. v. Fugate, 5 Cir., 313 F.2d 788, 795. A liberal construction of the pleadings is especially called for where they were prepared by a layman, Downing v. New Mexico State Supreme Court, 10 Cir., 339 F.2d 435, 436.
As noted at the outset of this opinion, DeWitt intends this as a civil rights action, primarily invoking R.S. § 1979 (1875), 42 U.S.C. § 1983 (1964). In order to state a claim under this statute, facts must be alleged which show that the defendant: (1) while acting under color of any statute, ordinance, regulation, custom or usage of any State or Territory; (2) subjects, or causes to be subjected, any person within the...
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