Viola McKinney v. Lee E. De Bord

State prisoner McKinney filed suit under the Civil Rights Act, 42 U.S.C. § 1983 , for himself, his mother Viola and another state prisoner Wimberley 1 against 23 employees of the California prison system, a lawbook publishing company and one of its employees. He alleged 10 substantive counts and one count for punitive damages. Of the 10 substantive counts, 9 concerned actions of the prison officials, largely involving allegations of denial of access to various legal materials. Apparently McKinney was substantially involved in giving advice and preparing legal documents for himself and others. In the remaining substantive count McKinney alleged that the lawbook publishing company and one of its salesmen had conspired with prison officials to prevent him from receiving lawbooks his mother had purchased for him. As a result of defense motions for dismissal and summary judgment, the trial court disposed of the case in favor of defendants-appellees. McKinney v. DeBord, 324 F.Supp. 928 (E.D.Cal.1970).

Although the notice of appeal purports to be on behalf of all plaintiffs, it is signed only by McKinney. The notice of appeal must be signed by the party or the party’s attorney.…

(concurring and dissenting):

I concur in Judge Choy’s opinion except as to its treatment of count 3. In this count, McKinney claims that prison officials refused to allow him to show his mother certain catalogues and brochures from lawbook companies. The district court dismissed this count as failing to state a cause of action upon which relief could be granted because it assumed that McKinney’s intention was to have her buy “legal books which he intended to keep in his cell” and that he “was seeking to purchase more books than he was permitted to possess in his cell under applicable prison regulations . . . .” *506 McKinney v. DeBord, 324 F.Supp. 928, 932 (E.D.Cal.1970).

Based upon statements in documents other than the unanswered complaint, Judge Choy concludes that McKinney would have put the books, to be purchased in his cell. The district court could not have relied upon these statements, however, without treating the motion as one for summary judgment. If it did so, it would be required to allow McKinney to respond. Dale v. Hahn, 440 F.2d 633, 638 (2d Cir. 1971). Nor do 1 believe the district court could dismiss the complaint as a sham on the basis of pleadings of the…

(concurring and dissenting):

I concur with Judge Choy’s holding that the trial court’s dismissal of count 3 should be affirmed, but I dissent from his holding that the trial court’s dismissal of counts 5 and 7 be reversed and remanded.

The appellant, who at the time of filing the complaint was a state prisoner, seeks damages by way of this civil rights action, brought pursuant to the provisions of Title 42 U.S.C. § 1983 , for alleged wrongs done to him during his incarceration.

His complaint is quite typical of pro se pleadings. It is a lengthy and disorganized narrative of alleged injustices which he claims have been perpetrated upon him by prison officials. The complaint is replete with irrelevancies and inconsistencies, and the precise nature of his claims often appear vague and obscure. On the whole it appears to be a challenge to the prison officials’ authority to enact and enforce disciplinary rules, a contention which is without substantial merit.

The trial court, after patiently sifting through the pleadings and considering each of appellant’s claims, decided all eleven counts against him. McKinney v. DeBord, 324 F.Supp. 928 (E.D.Cal.1970). We are in agreement that the…

507 F.2d 501 Viola McKINNEY et al., Plaintiffs-Appellants, v. Lee E. DE BORD et al., Defendants-Appellees. No. 71-1209. United States Court of Appeals, Ninth Circuit. Nov. 21, 1974. Mervin C. McKinney, in pro. per. Anthony L. Dicce, Deputy Atty. Gen. (appeared), Sacramento, Cal., Thos. A. Welch, Brobeck, Phleger & Harrison (appeared), San Francisco, Cal., for defendants-appellees. Before CHOY * and WALLACE, Circuit Judges, and CURTIS, ** District Judge. OPINION CHOY, Circuit Judge: 1 State prisoner McKinney filed suit under the Civil Rights Act, 42 U.S.C. 1983, for himself, his mother Viola and another state prisoner Wimberley 1 against 23 employees of the California prison system, a lawbook publishing company and one of its employees. He alleged 10 substantive counts and one count for punitive damages. Of the 10 substantive counts, 9 concerned actions of the prison officials, largely involving allegations of denial of access to various legal materials. Apparently McKinney was substantially involved in giving advice and preparing legal documents for himself and others. In the remaining substantive count McKinney alleged that the lawbook publishing company and one of its…