(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 ear 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. *59 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 4[a], 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 that, insofar as the personal defendants are concerned, the complaint did state claims upon which relief could be granted, and it should not have been dismissed for that reason.

In ruling that the allegations concerning refusal to render necessary medical care did not state a claim under the Civil Rights Act, the district court relied upon United States ex rel. Lawrence v. Ragen, 7 Cir., 323 F.2d 410 ; and Threatt v. State of North Carolina, W.D.N.C., 221 F.Supp. 858 . The complaint in the Lawrence case affirmatively alleged, at great length, the very extensive and thorough medical care the plaintiff received. The reviewing court was therefore able to say that, according to the complaint itself, plaintiff was afforded medical treatment and care for his alleged ailments, including examination by a specialist.

In view of this, the action of the district court in dismissing the complaint in Lawrence was affirmed, the court stating that it found no showing of inadequate medical care and treatment that would justify federal intervention. The Loux complaint contains no such showing, the substance of the allegations being that since a 1963 X-ray disclosed an active and serious duodenal ulcer, no medical care has been provided although Loux has continued to suffer and has made many requests for medical care.

In the Threatt case, which I think was wrongly decided, there were allegations indicating that while the prisoner had not received all of the medical attention he wanted, he had been in the prison hospital at least twice, in a sanitarium once, and that he had been given milk and medication.

In my opinion, the correct rule to be applied was recently stated in Edwards v. Duncan, 4 Cir., 355 F.2d 993, 994 , where the court, in reversing an order *60 dismissing a complaint which alleged deprivation of needed medical care, said:

See, also, Coleman v. Johnston, 7 Cir., 247 F.2d 273 , where the court reversed an order dismissing a Civil Rights Act complaint in which it was alleged that defendant prison officials failed to procure urgently needed medical attention which resulted in the loss of plaintiff’s leg.

In ruling that the allegations concerning operation of the strip cell did not state a claim under the Civil Rights Act, the district court held that this is a matter of prison discipline. While the matter of state prison discipline is not ordinarily subject to examination in federal courts, the rule is otherwise if the treatment of a prisoner amounts to cruel and unusual punishment within the meaning of the Eighth Amendment, made applicable to the states under the Fourteenth Amendment. The authorities are collected in Jordan v. Fitzharris, N.D.Cal., 257 F.Supp. 674, 679 , decided on September 6, 1966. In that Civil Rights Act suit, the plaintiff, proceeding pro se, made allegations in his complaint concerning the operation of a strip cell at a California penal institution which are very similar to the allegations made by Loux. The district court permitted process to issue, granted leave to proceed in forma pauperis, appointed counsel to represent the plaintiff, conducted an evi-dentiary hearing at the institution, and granted injunctive relief.'

It is to be remembered that we are not now dealing with the question of whether Loux will ultimately be entitled to any relief. His factual allegations may be completely unsupportable. But the question here is whether the complaint states a claim. The facts set forth in the complaint must therefore be assumed to be true. Williford v. People of State of California, 9 Cir., 352 F.2d 474, 475-476 . A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99 , 2 L.Ed.2d 80 . This rule is applicable in actions brought under the Civil Rights Act. York v. Story, 9 Cir., 324 F.2d 450 . Needless to say, the fact that, in his original complaint, Loux sought damages in the absurd amount of $250,000 from each of the defendants, has nothing to do with the sufficiency of the complaint to state a claim.

I now return to the procedural aspects of this case. Notwithstanding the fact that, in my opinion, the district court erred in dismissing the original complaint because of failure to follow the procedures outlined in Armstrong v. Rushing, this is not ground for reversal. As indicated in the majority opinion, Loux acquiesced in such dismissal by filing an amended complaint.

In his amended complaint, Loux dropped all of the personal defendants, retaining as defendant only the State of Washington. He also dropped the claim based upon the refusal to provide necessary medical care. As indicated in the majority opinion, he also limited the allegation of mistreatment in the strip cell to an averment that he was not provided with a bed, blankets and clothes. But instead of presenting this latter claim as one involving cruel and unusual punishment under the Eighth Amendment, *61 he cast it as a deprivation of equal protection of the laws under the Fourteenth Amendment. In so doing, Loux referred to R.C.W. 72.08.100, which prescribes general rules for the treatment of prisoners of the State of Washington. This state statute requires that a bed, blankets and garments be supplied all prisoners. Loux also added allegations to the effect that, in his case, the strip cell was not used to enforce prison discipline or to prevent plaintiff from harming others. He also reduced his prayer for damages to $25,000.

Again, the district court did not permit issuance of process, nor give any notice that dismissal of the amended complaint was under consideration. Issuance of process is not ordinarily a requirement with regard to amended complaints, except as to added parties. But where process has not previously issued as to any defendant, I believe issuance of process of an amended complaint is required.

The majority states that issuance of process was not necessary with regard to the amended complaint because the district court has no jurisdiction to grant relief against a state in a Civil Rights Act suit. In my view, the inadequacy of the complaint with respect to the state’s amenability to suit under the Civil Rights Act, is not one of jurisdiction, but of failure to state a claim upon which relief can be granted. See Willi-ford v. People of State of California, 9 Cir., 352 F.2d 474, 476 ; Wallach v. City of Pagedale, 8 Cir., 359 F.2d 57, 59 .

There is another reason, however, why the district court did not have jurisdiction as to the State of Washington. That state has not consented to be sued in federal district court by citizens of that state or any other state, and under the Eleventh Amendment is therefore immune from such suits. See Clark v. State of Washington, 9 Cir., 366 F.2d 678, 680 .

But I do not believe that the determination of the district court, even if it turns out to be true, that it lacks jurisdiction to entertain a complaint, warrants disregard of the explicit requirements of Rule 4(a) of the Federal Rules of Civil Procedure, that “Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal * *

In the federal courts compliance with Rule 4(a) is required in all civil actions. Jefferson v. Stockholders Pub. Co., 9 Cir., 194 F.2d 281, 282 . In Bauers v. Heisel, 3 Cir., 361 F.2d 581 , the district court ordered a civil rights suit by a state prisoner filed and at the same time, without permitting process to issue, dismissed it as “ * * * lacking in merit and pertain [ing] to the matters over which the court has no jurisdiction.” The court made this comment concerning this method of proceeding:

The undesirability, from the standpoint of proper judicial administration, of proceeding without issuance of process must be self-evident. In this case, no defendant has ever appeared in the district court or in this court. Insofar as the record indicates, all of the defendants are completely unaware of the pendency of this litigation. As a result this is, in essence, a non-adversary proceeding. While the jurisdictional defect I have referred to seems clear in this case, questions of jurisdiction are sometimes close. The district court and this court are entitled to an adversary presentation on all questions, including jurisdiction. This is what Rule 4(a) contemplates. See Sires v. Cole, 9 Cir., 320 F.2d 877, 879, note 2 .

It is also apparent that in filing the amended complaint, Loux, who is proceeding without the assistance of counsel, must have thought that the order dismissing the original complaint amounted to a holding that the State of *62 Washington is a proper party defendants in a civil rights action, but not the personal defendants. This seems to be the only reasonable explanation why Loux dropped the personal defendants in his amended complaint. As indicated above, just the opposite is true — the personal defendants are proper party defendants and the state is not.

Under all of the circumstances of this case, and particularly in view of the failure to issue process, I believe that the proper disposition of this appeal would be to follow the procedure substantially as specified in Urbano v. Calissi, 3 Cir., 353 F.2d 196 . In that case, as here, the district court dismissed a Civil Rights Act suit without issuance of process. In view of this fact the court of appeals viewed the case as non-adversary, vacated the order dismissing the action, and remanded the proceeding “ * * * so that the case may proceed in due course, beginning with service of the complaint on the defendants.”

In our case, since Loux has, by reason of the procedural errors in dismissing the original complaint, been led to file a totally insufficient amended complaint, simple justice requires that, on remand, he be permitted to file a second amended complaint restoring the personal defendants and the substance of his original claims, if he wishes to do so. After issuance of process and service of such an amended complaint, if one is filed, defendants may proceed by motion to dismiss, summary judgment, or by answer and trial, to test the sufficiency and merits of Loux’ claims.

It need only be added that, since the majority does not agree with such a disposition of the appeal, Loux should at least know that any claim he may have under the Civil Rights Act against the original personal defendants has not been adjudicated in this proceeding, and may be reasserted by him. This is true not only because the majority opinion provides that the dismissal shall not operate as an adjudication on the merits, but because the original personal defendants, who have never been served with process, were dropped from the amended complaint.

During the period Loux has been imprisoned in execution of the sentence referred to above, the running of the applicable statute of limitations has been tolled. See Horn v. Bailie, 9 Cir., 309 F.2d 167, 168 .