Potter v. McCall, No. 24496.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 433 F.2d 1087
• Docket Number: No. 24496.
• Decision Date: 04 November 1970
• Parties: William David POTTER, Plaintiff. Appellant, v. Tom McCALL, Governor of the State of Oregon, et al., Defendants-Appellees.

433 F.2d 1087 (1970)

William David POTTER, Plaintiff. Appellant,
v.
Tom McCALL, Governor of the State of Oregon, et al., Defendants-Appellees.

No. 24496.

United States Court of Appeals, Ninth Circuit.

November 4, 1970.

433 F.2d 1088

William David Potter, in pro. per.

Lee Johnson, Atty. Gen., David H. Blunt, Asst. Atty. Gen., Rhoten, Rhoten & Speerstra, Salem, Or., for defendants-appellees.

Before WRIGHT and KILKENNY, Circuit Judges, and TAYLOR,^* District Judge.

PER CURIAM:

Appellant, a prisoner at the Oregon State Penitentiary, brought a civil action for damages against the governor of Oregon and other public officials, alleging a violation of his civil rights. He invoked the jurisdiction of the District Court under 28 U.S.C. § 1343 and 42 U.S.C. § 1983.

The complaint alleged that the defendants, officers and employees of the state, transferred him from the penitentiary to the Oregon State Hospital for treatment. He alleges that he was not informed of the risks of the treatment, that he was required to undergo it with out a hearing, and that he suffered a permanent physical disability as a result. The defendants' motion to dismiss was on the ground that the complaint does not state a claim on which the court can grant relief.

The District Court did not follow the proper procedure as outlined in our prior decisions. Dodd v. Spokane County, 393 F.2d 330 (9th Cir. 1969), Armstrong v. Rushing, 352 F.2d 836 (9th Cir. 1965), and Harmon v. Superior Court, 307 F.2d 796 (9th Cir. 1962). When a plaintiff in a civil rights suit is confined in a state prison at the time of a hearing, he has no right to appear personally. He is, however, entitled to have:

(1) process issued and served;

(2) notice of any motion thereafter made by defendant or the court to dismiss the complaint and the grounds therefor;

(3) an opportunity to at least submit a written memorandum in opposition to such motion;

(4) in the event of dismissal, a statement of the grounds therefor; and

(5) an opportunity to amend the complaint to overcome the deficiency unless it clearly appears from the complaint that the deficiency cannot be overcome by amendment. Armstrong v. Rushing, supra, at 837.

Here there was no compliance with requirements (3), (4), or (5).

We said, through Judge Duniway, in Harmon v. Superior Court, supra:

"The claim may be, as appellees assert, entirely spurious. The complaint may well not state a claim upon which relief can be granted. It may be that appellant cannot amend to state such a claim. But those are not the questions before us. The court cannot know, without hearing the parties, whether it may be possible for appellant to state a claim entitling him to relief, however strongly it may incline to the belief

433 F.2d 1089

that he cannot. * * * The right to a hearing on the merits of a claim over which the court has jurisdiction is of the essence of our judicial system, and the judge\'s feeling that the case is probably frivolous does not justify by-passing that right. Appellant is entitled to have process issued and served, and to be heard."¹

Reversed and remanded.

KILKENNY, Circuit Judge (dissenting):

The record reveals that appellant's complaint was duly served upon the appellees. They promptly appeared and on May 23, 1969, filed a motion to dismiss on the ground that the complaint did not state a claim upon which relief could be granted. Included in appellees motion was a memorandum of authorities. The motion to dismiss was served upon appellant by mail on the same day. Inasmuch as the copy of the motion was deposited in the Post Office in Salem and appellant's residence was in the same city, it is presumed that he received the copy of the motion the following day.

Rule 7(b) of the Rules of the United States District Court for the District of Oregon provides:

"(b) Motion Calendar. All motions and interlocutory pleadings raising a question of law only will be heard, unless the Court otherwise directs, on the second Monday after such pleading is filed."

Under this rule, the motion for dismissal was placed on the calendar for hearing on Monday, June 2, 1969. On that day, the motion to dismiss was before the court for hearing. Appellees' attorneys appeared ready to argue the motion. The district judge asked if the appellant was present. On ascertaining that the appellant was not present, the judge stated that he had read the authorities cited by appellees in their memorandum and allowed the motion to dismiss. It is my view that the appellant, the same as any other litigant, is bound by this rule of court. To create an exception in his favor is nothing short of judicial legislation which will create outright chaos at the trial court level. We should not place upon the trial judge the burden of examining the file in each case, guessing whether a pro se plaintiff is incarcerated and, if so, inviting him to file an argument in support of his pleading. Nothing in the FRCivP require any such procedure.

Rule 12(b), FRCivP, authorizes the district court to dismiss the complaint for failure to state a claim. Simply stated, the appellant's complaint does not state a claim upon which relief can be granted. He attempts to state a claim under the Civil Rights Act, 42 U.S.C. § 1981, et seq. and 28 U.S.C. § 1343. Most of the statements in the complaint are conclusionary.

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