James F. Armstrong v. Dewie Rushing

James F. Armstrong commenced this action against Dewie Rushing to recover damages under the Civil Rights Act, R.S. § 1979 (1875), 42 U.S.C. § 1983 (1964). The district court, on its own motion, and before issuance or service of process upon defendant, dismissed the complaint without leave to amend. Armstrong then took this appeal.

In his complaint Armstrong alleged as follows: he was arrested on a charge of assault with a deadly weapon. On January 29, 1953, while he was being arraigned on that charge, he was served with another complaint charging assault by means of force likely to produce great bodily injury. While he was being held on these charges, defendant Dewie Rushing, a police investigator of Madera County, made an illegal search of Armstrong’s dwelling and an illegal seizure of plaintiff’s personal property found therein.

According to the complaint, the illegality of this search and seizure arises from the fact that Rushing had no magistrate’s warrant authorizing such a search and seizure, nor did he have the consent or permission of Armstrong. As alleged in the complaint, the property seized by Rushing included a tool box, numerous tools used by plaintiff as a…