Grady Carroll Ouzts v. Maryland National Insurance Company

This case as a decision of a panel of the court is reported at 470 F.2d 790 (9th Cir. 1972). Following that decision, en banc proceedings were initiated resulting in a determination to rehear the case en banc. Additional briefs were filed by counsel of record and by amici curiae on the issue of state action, and the case was orally reargued. 1 We reaffirm.

*549 The attention accorded the case thus far merits a more complete statement of the facts than heretofore given. In October, 1965, Grady Carroll Ouzts (Ouzts) was arrested in Las Vegas, Nevada, and charged with obtaining money under false pretenses. The Justice Court for the Township of Las Vegas set bail at $2,500.

On November 1, 1965, Defendant William Embry, doing business as “Bill Em-bry Bail Bonds” (Embry) had Ouzts sign an “Application and Agreement for Appearance Bond or Recognizance” (Agreement) in favor of defendant Maryland National Insurance Company (Maryland National) for which Embry was agent. The defendants, Darrow Peterson and Iola Peterson (the Peter-sons), executed the agreement as indem-nitors.

The Agreement stated that in consideration of Maryland National’s approval of the application and…

Circuit Judge, dissenting, with whom Circuit Judges BROWNING, DUNIWAY and ELY concur:

I cannot agree that Ouzts has failed to allege sufficient facts to entitle him to a trial on the merits of his claim that defendants acted under color of state law to deprive him of federally protected rights, in affirming the district court’s dismissal of Ouzts’ civil rights action, the majority ignores well-established Supreme Court authority and threatens to frustrate the congressional purpose underlying enactment of section 1983’s provision for an expansive, comprehensive remedy for the deprivation of federal constitutional and statutory rights. (See generally Adickes v. S. H. Kress & Co. (1970) 398 U.S. 144, 162-169 ; id. at 203-206 , 90 S.Ct. 1598 (Brennan, J., concurring in part and dissenting in part).)

I.

The pleadings and affidavits filed prior to the district court’s dismissal of Ouzts’ section 1983 action, viewed in the light most favorable to Ouzts’ claim, 1 indicate that Ouzts was arrested in Las Vegas, Nevada, in October 1965 on a charge of obtaining money under false pretenses. Ouzts was released three days later, after Maryland National Insurance Company, through William…

(dissenting) :

I cannot agree with Judge Hufstedler that the defendants acted under color of California law or that California has vested or purported to vest them with state power. They were Nevada bondsmen and had no authority in California save to secure California assistance upon complying with prescribed procedures— a course they failed to follow.

*562 However, I agree with Judge Hufstedler that as private bondsmen they performed a public function in accepting custody of a released prisoner and guaranteeing the prisoner’s return. Professional bondsmen who assume custody of persons released on bail are providing the state with significant assistance in assuring that the manner in which it discharges its responsibilities to those it accuses of crimes, see generally Schilb v.Kuebel, 404 U.S. 357, 365 , 92 S.Ct. 479 , 30 L.Ed.2d 502 (1971); United States ex rel. Keating v. Bensinger, 322 F.Supp. 784 (N.D.Ill.1971), meets constitutional standards. The history of state reliance on private action to assure the return of an accused and the extent to which states have grown to rely on this manner of implementing a system of bail place the bondsman in a position where he “discharges…

(concurring) :

I concur in the dissenting opinion of Judge Hufstedler. I also concur in the dissenting opinion of Judge Merrill, insofar as it holds that the action of the defendants was also taken under color of Nevada law.

505 F.2d 547 Grady Carroll OUZTS, Plaintiff-Appellant, v. MARYLAND NATIONAL INSURANCE COMPANY et al., Defendants-Appellees. No. 26062. United States Court of Appeals, Ninth Circuit. Oct. 29, 1974. Phill Silver, Hollywood, Cal., for plaintiff-appellant. Keith Edwards (argued), of Parraguirre, Rose, ,9ico & Norwood, Las Vegas, Nev., for defendants appellees. Michael B. Weisz (argued), Legal Aid Society of San Diego, San Diego, Cal., and Richard A. Weisz (argued), Legal Aid Foundation of Long Beach, Long Beach, Cal., for amicus curiae in support of appellant. Noble K. Gregory (argued), of Pillsbury, Madison & Sutro, San Francisco, Cal., George R. Richter, Jr., of Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal. (argued), for amicus curiae in support of appellees. Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges. OPINION TRASK, Circuit Judge: This case as a decision of a panel of the court is reported at 470 F.2d 790 (9th Cir. 1972). Following that decision, en banc proceedings were initiated resulting in a determination to rehear the case en banc. Additional briefs were filed by…