Conway v. Slaughter, 25782.

Citation440 F.2d 1278
Decision Date09 April 1971
Docket NumberNo. 25782.,25782.
PartiesJames X. CONWAY, Appellant, v. I. SLAUGHTER, Psychiatrist, California Medical Facility, and Fifty-Eight Others, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

James X. Conway, in pro. per.

Evelle Younger, Atty. Gen., Edward P. O'Brien, George R. Nock, Deputy Attys. Gen., San Francisco, Cal., for amicus curiae in support of appellees.

Before HAMLEY, DUNIWAY and HUFSTEDLER, Circuit Judges.

PER CURIAM:

James X. Conway filed this civil rights action in the district court pursuant to 42 U.S.C. § 1981 et seq. and 28 U.S.C. §§ 1331, 1343(3). The district court permitted the filing of the complaint in forma pauperis, and then on its own motion dismissed the complaint without prejudice for failure to allege the facts supporting the claim with sufficient clarity or specificity.

An order purporting to dismiss a complaint, but not the action, is not appealable under 28 U.S.C. § 1291 unless it appears that "a court determined that the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make." Jackson v. Nelson, 405 F.2d 872, 873 (9th Cir. 1968).

Conway's complaint alleged a conspiracy by one named defendant and fifty-eight unnamed "others" to subject plaintiff, a California state prisoner, to religious persecution and deny him access to the courts. Several overt acts in furtherance of the conspiracy are alleged, including beatings, forced medication and the submission to the United States Supreme Court of a forged document which, it is alleged, induced the Court to dismiss certiorari in Conway v. California Adult Authority, 396 U.S. 107, 90 S.Ct. 312, 24 L.Ed.2d 295 (1969). The allegations are vague and conclusory in form and generally fail to meet the standard of factual specificity required in civil rights actions. See Williams v. Dunbar, 377 F.2d 505, 506 (9th Cir. 1967); Stiltner v. Rhay, 322 F.2d 314, 316 n. 4 (9th Cir. 1963). Moreover, there is no allegation that the defendants, or any of them, acted under color of state law as required by 42 U.S.C. § 1983.

It is apparent from the language of the district court's order dismissing the complaint "without prejudice should plaintiff desire to clarify his factual allegations by citing specific acts of mistreatment," that the court did not determine that the action could not be saved by amendment. Appellant remains free to file an amended complaint. Under these circumstances the order is...

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8 cases
  • Carter v. Small Business Administration, 76-903
    • United States
    • Colorado Court of Appeals
    • 22 Diciembre 1977
    ...cannot be saved by any amendment to the complaint. See, e. g., Borelli v. City of Reading, 532 F.2d 950 (3d Cir. 1976); Conway v. Slaughter, 440 F.2d 1278 (9th Cir. 1971); Azar v. Conley, 480 F.2d 220 (6th Cir. 1973). It is apparent that this complaint could not have been salvaged by any am......
  • Stout v. Robnett
    • United States
    • U.S. District Court — District of South Carolina
    • 3 Marzo 2000
    ...of fact indicating a deprivation of civil rights, rather than state simple conclusions.") (citations omitted); Conway v. Slaughter, 440 F.2d 1278, 1279 (9th Cir.1971) (upholding dismissal where the allegations were "vague and conclusory in form and generally fail[ed] to meet the standard of......
  • United States v. Hall, 30652.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 9 Abril 1971
  • The Rubberset Company v. United States, C.R.D. 72-9
    • United States
    • U.S. Court of Customs and Patent Appeals (CCPA)
    • 9 Mayo 1972
    ...and Procedure: Civil § 1219, § 1220. 14. See generally, Wright & Miller, op. cit. § 1202, § 1215, § 1374, § 1375. 15. Conway v. Slaughter, 440 F.2d 1278 (9th Cir. 1971); Byrd v. Bates, 220 F.2d 480 (5th Cir. 1955); Karlinsky v. New York Racing Ass'n. Inc., et al., 310 F. Supp. 937 (D.C.N.Y. ...
  • Request a trial to view additional results

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