William David Potter v. Tom McCall Governor of the State of Oregon

433 F.2d 1087 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. 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: 1 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 . 2 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…

(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:

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…

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 without 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…