Loux v. Rhay

• Decision Date: 06 March 1967
• Docket Number: No. 20603.,20603.
• Citation: 375 F.2d 55
• Parties: Richard E. LOUX, Appellant, v. B. J. RHAY, Warden et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

375 F.2d 55 (1967)

Richard E. LOUX, Appellant, v. B. J. RHAY, Warden et al., Appellees.

No. 20603.

United States Court of Appeals Ninth Circuit.

March 6, 1967.

Richard E. Loux, in pro. per.

John J. O'Connell, Atty. Gen., Olympia, Wash., for appellees.

Before CHAMBERS and HAMLEY, Circuit Judges, and BYRNE, District Judge.

BYRNE, District Judge.

Appellant, an inmate of Washington State Penitentiary, filed an in forma pauperis complaint with the United States District Court for the Eastern District of Washington, seeking damages in the amount of $1,500,000.00 from the State of Washington and several individuals, including the Warden and the Doctor of the prison.

He cited 28 U.S.C. § 1343 as conferring jurisdiction in the District Court, and alleged that he had "undergone cruel and unusual treatment" when the defendants, in violation of the Statutes of the State of Washington, placed him in a "strip cell" without a bed or covering of blankets or garments of any kind. He also alleged he was denied a complete medical examination when requested, and was refused medication for an active "duodenal ulcer".

The District Court dismissed the complaint for failure to state a claim upon which relief may be granted. The appellant then filed an amended complaint and documents denominated as follows: (1) Petition for a change of Venue; (2) Demand for change of place of trial; (3) Notice of motion for change of Venue; (4) Motions for a Writ of Habeas Corpus Ad Testificandum; (5) Motion for subpoenas in Forma pauperis; (6) Motion for a New trial; (7) Demand for jury trial.

In the amended complaint the appellant dropped the individuals and named only the State of Washington as a defendant. He also limited the allegations of mistreatment to an averment that he was deprived of the protection of the statutes of the State of Washington relating to the bed, blankets and clothing to be furnished each convict, and reduced his prayer for damages to $25,000.00.

The District Court considered the "Motion for a New trial" as a motion for reconsideration, and denied it. The court also denied the other motions and "demands", and dismissed the action. The trial judge thought the appellant was seeking a reconsideration of his ruling on the original complaint, but he misconceived the purpose of the document denominated "Motion for a New trial", in which appellant alleged, "The Court was justified in dismissing the original complaint. However, the attached amended complaint clearly states a cause of action under said Civil Rights Act. The defendant, by and through the means expressed in the amended complaint, did in fact and in law deprived (sic) affiant of the equal protection of the law". It is clear that appellant was not seeking reconsideration of the ruling on the original complaint but was asking for a trial on the amended complaint.¹

When the trial court dismissed the original complaint, it did not dismiss the action. The plaintiff could file an amended complaint as a matter of right under Rule 15(a) F.R.Civ.P. This he did. The amended complaint supersedes the original, the latter being treated thereafter as non-existent. Bullen v. De Bretteville, 239 F.2d 824, 833 (CA 9); Nisbet v. Van Tuyl, 224 F.2d 66 (CA 7); Ericson v. Slomer, 94 F.2d 437 (7 Cir.); Meyer v. State Board of Equalization, 42 Cal.2d 376, 267 P.2d 257; 71 C.J.S. Pleading § 321. By filing an amended complaint, plaintiff waives any error in the ruling to the original complaint. Grubbs v. Smith, 86 F.2d 275 (6 Cir.) cert. den. 300 U.S. 658, 57 S.Ct. 437, 81 L.Ed. 867; Aetna Life Ins. Co. v. Phillips, 69 F.2d 901 (CA 10).

The appeal is from the judgment dismissing the action. The dismissal was for failure to state a claim upon which relief may be granted, It is well settled that failure to state a claim calls for a judgment on the merits (Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939) but here the plaintiff should not be deprived of the opportunity to seek relief in the state courts as the dismissal should be for lack of jurisdiction. In the words of Mr. Justice Holmes,² "Jurisdiction is authority to decide the case either way." Here the District Court was without power to ultimately decide whether plaintiff's claim against the State of Washington was good or bad.

Congress has not authorized actions against a state under the Civil Rights Act (Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492; Williford v. People of California, 352 F.2d 474 (CA 9); Charlton v. City of Hialeah, 4 Cir., 188 F.2d 421), and the Supreme Court has admonished federal courts to "scrupulously confine their own jurisdiction to the precise limits which the statute has defined". Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248. Unlike Williford, supra, in the instant case the State is the sole defendant and the district court did not have the power to decide the plaintiff's claim, or any part of it. Charlton v. City of Hialeah, supra, 188 F.2d at page 423. Under the circumstances, the district court was not required to issue summons or follow the other procedural steps set forth in Armstrong v. Rushing, 352 F.2d 836 (CA 9). Indeed, it was not within the scope of the Court's authority to do more than note its lack of jurisdiction to proceed further with the case.

If the appellant is entitled to any relief against the State of Washington, it can be obtained only in the courts of that State.

The judgment is modified so that the dismissal shall not operate as an adjudication on the merits. As so modified, it is affirmed.

HAMLEY, Circuit Judge (dissenting).

In my opinion, the majority opinion does not make a correct disposition of this appeal. Since the appeal deals with reoccurring procedural problems involving pro se complaints under the Civil Rights Act, I believe a rather comprehensive statement of my views is called for.

Richard E. Loux, proceeding pro se and in forma pauperis, filed his original complaint on May 20, 1965. He named, as defendants, the State of Washington and five officials of the Washington State Penitentiary.

Since the district court dismissed this complaint on the ground that it did not state a claim upon which relief could be granted, a complete statement of the factual allegations is necessary. Loux has been a prisoner in Washington State Penitentiary since late 1961 or early 1962, following his conviction for the crime of attempted car theft, and his subsequent conviction for escape from the King County jail while awaiting transfer to the penitentiary.

He was sentenced to a maximum term of five years imprisonment for attempted car theft, and a maximum term of ten years for escape, the two sentences to run concurrently. The Washington State Board of Prison Terms and Parole thereafter fixed a minimum sentence of one year on the attempted car theft conviction, but provided that the sentence for escape would be consecutive thereto. At the time this civil complaint was filed Loux had completed his minimum term for attempted car theft and was then serving his minimum term for escape. The complaint does not indicate what minimum term was fixed by the Board for this latter conviction.

Concerning the claim based upon the refusal to provide necessary medical care, Loux alleged that defendants had refused to give him a complete medical examination when requested, and refused him medication for an active duodenal ulcer from which he had suffered for two years. Loux alleged that in the early part of 1963 he was given an X-ray to determine the seriousness of this ulcer. The X-ray disclosed that the ulcer was active and serious. Loux further alleged that since that X-ray, he has had pains in his stomach at all times, and has at least fifty times requested another X-ray and a complete medical examination. However, Loux further alleged, he has been ignored and refused by the hospital, for which defendant Carroll Heffron, a medical doctor employed at the hospital, is mainly responsible.

Concerning the claim based upon cruel and inhuman treatment, Loux alleged that on three different occasions he was placed in an isolation, or "strip" cell. The first occasion was for five days in September, 1962, the second for four days in December, 1964, and the third for seven days in February, 1965. This cell, Loux alleged, is approximately six feet by eight feet, and is completely bare except for a small six-inch drain in one corner, intended for use as a toilet. The cell, according to the complaint, has no water, light or heat, the temperature always being below 60 degrees. At no time while in this cell, Loux alleged, was he supplied with clothes, blankets, mattress or any covering whatever, and was left completely naked. No washing facilities or toilet paper were supplied. Because of the unsanitary conditions, he alleged, the cell reeked with a foul odor at all times.

On the day this complaint was filed the district court properly entered an order granting plaintiff leave to proceed in forma pauperis. On the same day, however, without affording the clerk an opportunity to issue a summons and deliver it to the marshal for service (see Rule 4a, Federal Rules of Civil Procedure), and without notice or hearing of any kind, the district court entered another order dismissing the complaint for failure to state a claim upon which relief could be granted. In so proceeding the district court, in my opinion, committed three procedural errors: (1) acted upon the complaint without permitting issuance and service of process; (2) acted upon the complaint without notice to the plaintiff; and (3) acted upon the complaint without first affording the plaintiff an opportunity to at least submit a written memorandum in opposition to the proposal to dismiss the complaint. These requirements are explicitly set forth in Armstrong v. Rushing, 9 Cir., 352 F.2d 836, 837.

While this dissent is intended to deal primarily with procedural problems, it is my opinion...