Tyler v. Whitehead, No. KCD

CourtMissouri Court of Appeals
Writing for the CourtBefore SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM; PER CURIAM
Citation583 S.W.2d 240
Decision Date11 June 1979
Docket NumberNo. KCD
PartiesMelvin Leroy TYLER, Plaintiff-Appellant, v. Chief Deputy WHITEHEAD and Sheriff Charlie Foster, Defendants-Respondents. 29981.

Page 240

583 S.W.2d 240
Melvin Leroy TYLER, Plaintiff-Appellant,
v.
Chief Deputy WHITEHEAD and Sheriff Charlie Foster,
Defendants-Respondents.
No. KCD 29981.
Missouri Court of Appeals, Western District.
June 11, 1979.

Page 241

Gary Oxenhandler, Columbia, for plaintiff-appellant.

Milt Harper, Columbia, for defendants-respondents.

Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.

PER CURIAM:

The circuit court dismissed plaintiff's petition upon the motion of defendants, and plaintiff has appealed. The defendants asserted several grounds for their motion to dismiss the petition, and the record does not show which of these the court adopted in sustaining the motion. They defend the court's action only on the ground that the petition did not state a claim upon which relief could be granted. Rule 55.27(a)(6).

The petition, omitting formal parts and omitting the prayer for declaratory judgment, for injunctive relief, and for compensatory and punitive damages, reads as follows:

(1) Plaintiff is a prisoner confined to the Boone County jail at Columbia, Missouri.

(2) Defendants are the Sheriff and Chief Deputy Sheriff of Boone County, Missouri.

(3) Plaintiff alleges that from January 11, 1977, and continuing through January and into February, 1977, defendants in the County of Boone, City of Columbia, Missouri,

(a) Subjected or caused to be subjected the plaintiff to cruel and unusual punishment by inflicting mental and physical cruelty upon plaintiff by denying him equal treatment as other prisoners; subjecting the plaintiff to a dungeon cell for more than thirty days without regular showers, exercise, exposure to sunlight, news media, radio, TV; and

(b) By hindering plaintiff in his rights to access to courts by willfully and deliberately seizing the plaintiff's

Page 242

typewriter by their command; by preventing plaintiff from properly and adequately representing himself on plaintiff's pending civil and criminal litigation,

(c) That defendants willfully and maliciously caused plaintiff to be conferred to a dungeon cell without proper ventilation, exercise, shower, access to news media and equal treatment as other prisoners to hinder, deny or obstruct plaintiff in his right to access to courts.

(d) All defendants' acts were done (without procedural due process) deliberately, willfully and maliciously and without authority of law, without motive, right to be heard, to a hearing, impartial review and to call witnesses, to cross-examination and confrontation.

We have concluded that the petition is sufficient as against a motion to dismiss for failure to state a justiciable claim. We must therefore reverse and remand to the trial court for further proceedings.

We remind ourselves of the familiar procedural rule that in searching the petition for a justiciable claim for relief, as against a motion to dismiss, the petition is viewed favorably to the pleader, giving to the petition the benefit of every reasonable intendment. Butler v. Circulus, Inc., 557 S.W.2d 469, 472 (Mo.App.1977); Euge v. Golden, 551 S.W.2d 928, 931 (Mo.App.1977); Associated Grocers' Co. of St. Louis, Mo. v. Crowe, 389 S.W.2d 395, 399 (Mo.App.1965). The petition under the challenge of a motion to dismiss is judged with broad indulgence. What proof the plaintiff may adduce is quite another thing, but that is no concern of the court at this stage of the case. The presence or absence of viable evidence may be tested short of trial by motion for summary judgment. Rule 74.04.

We believe the petition does state a justiciable claim under 42 U.S.C.A. § 1983. That statute reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

If the petition states a claim for relief under 42 U.S.C.A. § 1983, the officers do not enjoy any absolute and unqualified immunity. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Cohen v. Norris, 300 F.2d 24, 33 (9th Cir. 1962); Beauregard v. Wingard, 230 F.Supp. 167, 174 (S.D.Cal.1964). 1

A claim for relief under 42 U.S.C.A. § 1983 is stated if the petition charges, first, conduct which is alleged to have subjected the plaintiff to a deprivation of rights,...

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13 practice notes
  • Mitchem v. Melton, No. 15136
    • United States
    • Supreme Court of West Virginia
    • 12. Mai 1981
    ...So.2d 522 (1980); Adler v. Los Angeles Unified School Dist., 98 Cal.App.3d 280, 159 Cal.Rptr. 528 (1979); Tyler v. Whitehead, Mo.App., 583 S.W.2d 240 (1979)." W.Va., 271 S.E.2d at To paraphrase Preiser, we need not for the purposes of this case explore the appropriate limits of habeas corpu......
  • Harrah v. Leverette, Nos. 14321
    • United States
    • Supreme Court of West Virginia
    • 7. Oktober 1980
    ...So.2d 522 (1980); Adler v. Los Angeles Unified School Dist., 98 Cal.App.3d 280, 159 Cal.Rptr. 528 (1979); Tyler v. Whitehead, Mo.App., 583 S.W.2d 240 When the state is guilty of extraordinary dereliction, discharge is a remedy. We warned prison officials about its possible use in previous o......
  • Rosenthal v. State of Nev., Civ. No. LV 79-39 RDF.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • 6. Mai 1981
    ...v. Jones, 464 F.Supp. 371 (D.Colo. 1979). Shapiro v. Columbia Union Nat. Bank & Trust Co., 576 S.W.2d 310 (Mo.1978). Tyler v. Whitehead, 583 S.W.2d 240 (Mo....
  • Nitcher v. Newton County Jail, No. 15428
    • United States
    • Court of Appeal of Missouri (US)
    • 31. Mai 1988
    ...Trust Co., 576 S.W.2d 310, 315-16 (Mo. banc 1978), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979); Tyler v. Whitehead, 583 S.W.2d 240, 243 In determining which statute of limitations applies to plaintiff's action, we learn from Wilson that there is no specific federal statut......
  • Request a trial to view additional results
13 cases
  • Mitchem v. Melton, No. 15136
    • United States
    • Supreme Court of West Virginia
    • 12. Mai 1981
    ...So.2d 522 (1980); Adler v. Los Angeles Unified School Dist., 98 Cal.App.3d 280, 159 Cal.Rptr. 528 (1979); Tyler v. Whitehead, Mo.App., 583 S.W.2d 240 (1979)." W.Va., 271 S.E.2d at To paraphrase Preiser, we need not for the purposes of this case explore the appropriate limits of habeas corpu......
  • Harrah v. Leverette, Nos. 14321
    • United States
    • Supreme Court of West Virginia
    • 7. Oktober 1980
    ...So.2d 522 (1980); Adler v. Los Angeles Unified School Dist., 98 Cal.App.3d 280, 159 Cal.Rptr. 528 (1979); Tyler v. Whitehead, Mo.App., 583 S.W.2d 240 When the state is guilty of extraordinary dereliction, discharge is a remedy. We warned prison officials about its possible use in previous o......
  • Rosenthal v. State of Nev., Civ. No. LV 79-39 RDF.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • 6. Mai 1981
    ...v. Jones, 464 F.Supp. 371 (D.Colo. 1979). Shapiro v. Columbia Union Nat. Bank & Trust Co., 576 S.W.2d 310 (Mo.1978). Tyler v. Whitehead, 583 S.W.2d 240 (Mo....
  • Nitcher v. Newton County Jail, No. 15428
    • United States
    • Court of Appeal of Missouri (US)
    • 31. Mai 1988
    ...Trust Co., 576 S.W.2d 310, 315-16 (Mo. banc 1978), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979); Tyler v. Whitehead, 583 S.W.2d 240, 243 In determining which statute of limitations applies to plaintiff's action, we learn from Wilson that there is no specific federal statut......
  • Request a trial to view additional results

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