William David Potter v. Tom McCall Governor of the State of Oregon ( 1970 )

PER CURIAM:

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 have:

(1) process issued and served;

(2) notice of any motion thereafter made by defendant or the court to dismiss the complaint and the grounds therefor;

(3) an opportunity to at least submit a written memorandum in opposition to such motion;

(4) in the event of dismissal, a statement of the grounds therefor; and

(5) an opportunity to amend the complaint to overcome the deficiency unless it clearly appears from the complaint that the deficiency cannot be overcome by amendment. Armstrong v. Rushing, supra, at 837.

Here there was no compliance with requirements (3), (4), or (5).

We said, through Judge Duniway, in Harmon v. Superior Court, supra:

“The claim may be, as appellees assert, entirely spurious. The complaint may well not state a claim upon which relief can be granted. It may be that appellant cannot amend to state such a claim. But those are not the questions before us. The court cannot know, without hearing the parties, whether it may be possible for appellant to state a claim entitling him to relief, however strongly it may incline to the belief that he cannot. * * * The right-to a hearing on the merits of a claim over which the court has jurisdiction is of the essence of our judicial system, and the judge’s feeling that the case is probably frivolous does not justify by-passing that right. Appellant is entitled to have process issued and served, and to be heard.” ¹

Reversed and remanded.

1 . Cf. Worley v. California Department of Corrections et al., 432 F.2d 769, decided October 19, 1970, in which we held that no claim -was stated and the complaint was so clearly defective that its deficiencies could not be overcome by amendment.