James F. Armstrong v. Alec W. Brown and Lester J. Gendron ( 1968 )

387 F.2d 908

James F. ARMSTRONG, Appellant,
v.
Alec W. BROWN and Lester J. Gendron et al., Appellees.

No. 21977.

United States Court of Appeals Ninth Circuit.

December 7, 1967.

Rehearing Denied January 11, 1968.

James F. Armstrong, in pro. per.

Roy E. Wolfe, County Counsel, Madera County, Madera, Cal., for appellee.

Before BARNES, HAMLEY and JERTBERG, Circuit Judges.

PER CURIAM:

1

This is a second appeal in forma pauperis from a dismissal of appellant's Civil rights complaint and cause of action, by which he sought "$100,000 damages, tax free," from a California Justice Court Judge and a California County District Attorney for refusing to file a criminal complaint sought by appellant to have filed some nine years after the occurrence of the acts which it charged.

2

On the first appeal the district court, "on its own motion, and before issuance or service of process upon defendant, dismissed the complaint without leave to amend." Armstrong v. Brown, 9 Cir., 352 F.2d 1023 (1965); Armstrong v. Rushing, 9 Cir., 352 F.2d 836 (1965). We therefore reversed, ordering that appellant was "entitled to have process issued and served, and to be heard." (352 F.2d at 837.)

3

Appellant has had such relief. His matter was heard by a second judge (C.T. 149-50), and the complaint was dismissed with leave to amend. After motion by appellant to disqualify the judge so ruling against him, appellant filed an amended complaint, which was heard by a third judge, who held the proceeding "was utterly frivolous and malicious within the meaning of Title 28 U.S.C. § 1915(d)," and hence dismissed the complaint and the cause of action. Stiltner v. Rhay, 9 Cir., 322 F.2d 314 (1963), Brown v. Brown, 9 Cir., 368 F.2d 992 (1966).

4

We affirm the dismissal.