Jerald Leroy Davis v. Department of Corrections

Ninth Circuit

Jerald Leroy Davis v. Department of Corrections

446 F.2d 644, 1971 U.S. App. LEXIS 8792

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 22, 1971

Docket26820

StatusPublished

Cited by14 cases

This text of 446 F.2d 644 (Jerald Leroy Davis v. Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jerald Leroy Davis v. Department of Corrections, 446 F.2d 644, 1971 U.S. App. LEXIS 8792 (9th Cir. 1971).

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Opinion

PER CURIAM:

Appellant, a state prisoner, appeals from the dismissal of his civil rights action. He challenged the constitutionality of a part of California’s parole revocation procedure pursuant to which his parole was revoked and his sentence re-fixed to life imprisonment.

We reject appellee’s contention that appellant’s appeal is untimely. Although the district court dismissed the action on April 13, 1970, judgment was not entered until July 13, 1970. Within 30 days after entry of judgment, appellant filed a motion for a certificate of probable cause. There is no provision for such a motion in a civil rights case. The motion was denied. He thereafter filed a notice of appeal. We treat the defective motion for a certificate of probable cause as a notice of appeal. That motion clearly indicated appellant’s wish to appeal the dismissal of his case. This court has not insisted upon procedural niceties in the form in which notices of appeal are cast. (E. g., Curtis Gallery & Library, Inc. v. United States (9th Cir. 1967) 388 F.2d 358; Poe v. Gladden (9th Cir. 1961) 287 F.2d 249; Yanow v. Weyerhaeuser S. S. Co. (9th Cir. 1958) 274 F.2d 274, cert. denied (1960) 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739.)

Appellant was proceeding in for-ma pauperis. (See 28 U.S.C. § 1915(a); C.D.Cal.R. 24(b).) The district court’s dismissal of the action for failure of appellant to effect service was erroneous. Under 28 U.S.C. § 1915(c), the officers of the court should have effected service. Potter v. McCall (9th Cir. 1970) 433 F.2d 1087 establishes the guidelines for the procedural conduct of a civil rights action filed by an incarcerated plaintiff.

The judgment is reversed and the cause is remanded to the district court.

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PER CURIAM:

Appellant, a state prisoner, appeals from the dismissal of his civil rights action. He challenged the constitutionality of a part of California’s parole revocation procedure pursuant to which his parole was revoked and his sentence re-fixed to life imprisonment.

We reject appellee’s contention that appellant’s appeal is untimely. Although the district court dismissed the action on April 13, 1970, judgment was not entered until July 13, 1970. Within 30 days after entry of judgment, appellant filed a motion for a certificate of probable cause. There is no provision for such a motion in a civil rights case. The motion was denied. He thereafter filed a notice of appeal. We treat the defective motion for a certificate of probable cause as a notice of appeal. That motion clearly indicated appellant’s wish to appeal the dismissal of his case. This court has not insisted upon procedural niceties in the form in which notices of appeal are cast. (E. g., Curtis Gallery & Library, Inc. v. United States (9th Cir. 1967) 388 F.2d 358; Poe v. Gladden (9th Cir. 1961) 287 F.2d 249; Yanow v. Weyerhaeuser S. S. Co. (9th Cir. 1958) 274 F.2d 274, cert. denied (1960) 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739.)

Appellant was proceeding in for-ma pauperis. (See 28 U.S.C. § 1915(a); C.D.Cal.R. 24(b).) The district court’s dismissal of the action for failure of appellant to effect service was erroneous. Under 28 U.S.C. § 1915(c), the officers of the court should have effected service. Potter v. McCall (9th Cir. 1970) 433 F.2d 1087 establishes the guidelines for the procedural conduct of a civil rights action filed by an incarcerated plaintiff.

The judgment is reversed and the cause is remanded to the district court.

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446 F.2d 644, 1971 U.S. App. LEXIS 8792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jerald-leroy-davis-v-department-of-corrections-ca9-1971.

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