507 F.2d 501 (9th Cir. 1974), 71-1209, McKinney v. De Bord

Docket Nº:71-1209.
Citation:507 F.2d 501
Party Name:Viola McKINNEY et al., Plaintiffs-Appellants, v. Lee E. DE BORD et al., Defendants-Appellees.
Case Date:November 21, 1974
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 501

507 F.2d 501 (9th Cir. 1974)

Viola McKINNEY et al., Plaintiffs-Appellants,


Lee E. DE BORD et al., Defendants-Appellees.

No. 71-1209.

United States Court of Appeals, Ninth Circuit

November 21, 1974

Page 502

Mervin C. McKinney, in pro. per.

Anthony L. Dicce, Deputy Atty. Gen. (appeared), Sacramento, Cal., Thos. A. Welch, Brobeck, Phleger & Harrison (appeared), San Francisco, Cal., for defendants-appellees.

Page 503

Before CHOY [*] and WALLACE, Circuit Judges, and CURTIS, [**] District Judge.


CHOY, Circuit Judge:

State prisoner McKinney filed suit under the Civil Rights Act, 42 U.S.C. 1983, for himself, his mother Viola and another state prisoner Wimberley 1 against 23 employees of the California prison system, a lawbook publishing company and one of its employees. He alleged 10 substantive counts and one count for punitive damages. Of the 10 substantive counts, 9 concerned actions of the prison officials, largely involving allegations of denial of access to various legal materials. Apparently McKinney was substantially involved in giving advice and preparing legal documents for himself and others. In the remaining substantive count McKinney alleged that the lawbook publishing company and one of its salesmen had conspired with prison officials to prevent him from receiving lawbooks his mother had purchased for him. As a result of defense motions for dismissal and summary judgment, the trial court disposed of the case in favor of defendants-appellees. McKinney v. De.bord, 324 F.Supp. 928 (E.D.Cal.1970).

Although the notice of appeal purports to be on behalf of all plaintiffs, it is signed only by McKinney. The notice of appeal must be signed by the party or the party's attorney. Fed.R.Civ.P. 11. See Wilson v. Dixon,256 F.2d 536 (9th Cir.), cert. denied, 358 U.S. 856, 79 S.Ct. 89, 3 L.Ed.2d 90 (1958). Since McKinney is not an attorney, the purported appeals by Viola McKinney and Wimberley must be dismissed and it is so ordered. Additionally, since McKinney is no longer incarcerated, his request for declaratory judgment and his allegations concerning prison conditions are moot. As to the remaining issues, we agree basically with the disposition by the district court, but we feel it necessary to amplify the lower court's treatment of the case on several of McKinney's claims. With the specific exception discussed below, we affirm.

In count three, McKinney claims that prison officials refused to allow him to show his mother certain catalogues and brochures from lawbook companies. The district court dismissed this count as failing to state a cause of action upon which relief could be granted because it found that McKinney's intention was to have her buy 'legal books which he intended to keep in his cell' and that he 'was seeking to purchase more books than he was permitted to possess in his cell under applicable prison regulations . . ..' 324 F.Supp. at 932.

We are admonished by the oft-repeated 2 rule of Conley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), that a complaint should only be dismissed under Fed.R.Civ.P. 12(b)(6) if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' That, of course, requires that every factual difference be resolved in the plaintiff's favor. 5 C. Wright & A. Miller, Federal Practice and Procedure 1357 at 601 (1969). In line with this rule, we suppose that it is conceivable McKinney could have had a legitimate purpose in having his mother purchase the law books for him-- one which would not have entailed violation of the prison regulation limiting at sixteen the number of books a prisoner could have in his cell. He could have wished to replace books in

Page 504

his cell with those his mother would purchase, thereby staying within the sixteen book limit; or he moght possibly have donated the newly acquired volumes to the prison library, also a permissible form of access to law books. See In re Harrell, 2 Cal.3d 675, 697 & n. 23,87 Cal.Rptr. 504, 518-519, 470 P.2d 640, 654-655 (1970), cert. denied, 401 U.S. 914, 91 S.Ct. 890, 27 L.Ed.2d 814 (1971).

But, in construing a complaint most favorably for the plaintiff, a court need not give a plaintiff the benefit of every conceivable doubt; rather, a court is required only to draw every reasonable or warranted factual inference in the plaintiff's favor. 3 And the same rule which requires us to apply 'less stringent' standards to pro se complaints 'than (to) formal pleadings drafted by lawyers,' Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), also teaches that we should use common sense in interpreting the frequently diffuse pleadings of pro se complainants. Cf. Weller v. Dickson, 314 F.2d. 598, 601-602 (9th Cir.) (Duniway, J., concurring), cert. denied, 375 U.S. 845, 84 S.Ct. 97, 11 L.Ed.2d 72 (1963). 4

With this in view, it is clear here that the district court was correct in finding that it was McKinney's intention to purchase books for his cell. McKinney, in both his brief here and his memoranda filed below, makes it evident that it was never his intention to have his mother replace books in his cell library or to donate them to the prison library. 5 Nowhere does McKinney argue other than that he intended to purchase the books for his cell.

Thus, interpreting the third count of McKinney's complaint in a common sense manner, we affirm the district court's dismissal of it. We would be blind to the realities of this case were we to do otherwise and hypothetically assume that McKinney had some other factual possibility in mind in his complaint than that which he repeatedly declares in his arguing papers. Cf. S & S Logging Co. v. Barker, 366 F.2d 617, 623 (9th Cir. 1966).

McKinney complains in counts five and seven that prison officials denied his First Amendment rights by seizing letters sent by him to the law book company. These letters...

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