Michaels v. Chappell
| Decision Date | 15 June 1960 |
| Docket Number | No. 16657.,16657. |
| Citation | 279 F.2d 600 |
| Parties | Patrick MICHAELS, Appellant, v. Howard W. CHAPPELL et al., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
A. L. Wirin, Fred Okrand, Marvin Leon, Beverly Hills, Cal., for appellant.
Louis Lee Abbott, Los Angeles, Cal., for appellee.
Before CHAMBERS, BARNES and JERTBERG, Circuit Judges.
This action, for abuse of process and "violation of constitutional rights" was commenced in the Superior Court for the County of Los Angeles. Upon motion of the defendant the action was removed to the federal district court under 28 U.S.C. § 1442(a)(1). A motion to dismiss the action for failure to state a claim upon which relief could be granted was sustained, and judgment was entered on the order of dismissal. Jurisdiction is asserted in this Court under 28 U.S.C. § 1291.
The appellant herein is Patrick Michaels, a news broadcaster, and appellees are Chappell, Goodman and Read, Federal narcotics investigators. Chappell is the agent in charge of the Los Angeles Office of the Federal Bureau of Narcotics.
According to the allegations of the complaint, which we must take as true, in 1958 one Mickey Cohen was being tried for an alleged assault on Chappell. He was acquitted, and there was testimony to the effect that Chappell struck the first blow. A witness testified that he was approached by Chappell with a request that he help "make a case" against Cohen. The United Press picked up the story, changing the words "make a case" to the word "frame." Michaels used the story on the air, attacking Chappell violently and suggesting that Chappell should be indicted for assault.
The following day agents Goodman and Read approached Michaels. They demanded a copy of the script of the broadcast attacking Chappell, and served on him a subpoena to appear before the Federal Grand Jury three days later. Michaels handed over the script, whereupon he was told that he need not obey the subpoena nor appear before the grand jury with a copy of the script. Appellant had been told that he would be saved a lot of trouble if he handed over the script, and that he need not appear if he would do so. Appellees Goodman and Read refused, however, to endorse the copy of the subpoena to show that appellant need not appear. Goodman and Read read the script, and told Michaels that he would be saved a lot of headaches if he would retract the portion about "framing" Cohen.
Appellant was advised by his attorney that he should obey the subpoena in spite of the promises of appellees. Two days later Chappell and Michaels had a conference, at which Chappell stated that he had ordered the subpoena served on Michaels for the purpose of insuring the production of the script. He advised Michaels that he need not appear at the Grand Jury hearing the next day, but refused to sign a waiver of appearance.
The following day Michaels appeared at the Grand Jury hearing, but was informed by the United States Attorney that he was not wanted as a witness, and that the United States Attorney's Office knew nothing of the subpoena.
A week after the initial broadcast Michaels made a grudging retraction of the material which was objected to over the air. The scripts of the two broadcasts, as well as the subpoena, appear as exhibits to the complaint at page fifteen of the transcript.
The complaint is replete with allegations that the Federal agents were acting completely without authority throughout, and were motivated by purely personal considerations. The complaint alleges damages in the amount of $10,500, and prays punitive damages in the amount of $1,000. The damages alleged would seem to stem from:
1. "Illegal search and seizure" of the script.
2. The appearance to no purpose of Michaels at the Grand Jury hearing.
3. "Deprivation of freedom of speech" in causing the retraction to be made.
The judgment of dismissal was entered on July 23, 1959. Notice of this judgment was mailed to appellant on July 27, 1959. The notice of appeal was filed September 15, 1959. This was more than thirty but less than sixty days following the entry of judgment.
Rule 73 of the Federal Rules of Civil Procedure, 28 U.S.C. provides that an appeal must be taken within thirty days of the entry of judgment, except in an action to which the "United States or an officer or agency thereof is a party * * *" in which case the time is extended to sixty days.
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Williams v. Collins
...in a case involving a government officer sued in his individual capacity for possibly government-related activity. See Michaels v. Chappell, 279 F.2d 600 (9th Cir.1960), cert. denied, 366 U.S. 940, 81 S.Ct. 1663, 6 L.Ed.2d 851 (1961). We are persuaded of the wisdom of the Ninth Circuit's re......
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NeSmith v. Fulton
...States as a real party in interest requiring various government officials to review the decision to appeal. See Michaels v. Chappell, 279 F.2d 600, 602 (9th Cir. 1960), cert. denied, 366 U.S. 940, 81 S.Ct. 1663, 6 L.Ed.2d 851 (1961) (person not "official or agency" of United States for purp......
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Wallace v. Chappell, 79-3172
...were entitled to intra-service immunity, and that plaintiffs had failed to exhaust their administrative remedies. In Michaels v. Chappell, 279 F.2d 600 (9th Cir. 1960), cert. denied, 366 U.S. 940, 81 S.Ct. 1663, 6 L.Ed.2d 851 (1961), we held in effect that a party could not take inconsisten......
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Sinclair v. Schriber
...had appeared on his behalf. Hare v. Hurwitz, 248 F.2d 458 (1957). The Ninth Circuit adopted Hare without analysis in Michaels v. Chappell, 279 F.2d 600 (1960), cert. denied, 366 U.S. 940, 81 S.Ct. 1663, 6 L.Ed.2d 851 (1961), but later reversed itself in Wallace v. Chappell, 637 F.2d 1345 (1......