Richard E. Loux v. B. J. Rhay, Warden

375 F.2d 55, 1967 U.S. App. LEXIS 7205

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 6, 1967
• Docket: 20603_1
• Status: Published

Opinions

BYRNE, District Judge.

Appellant, an inmate of Washington State Penitentiary, filed an in forma pau-peris complaint with the United States District Court for the Eastern District of Washington, seeking damages in the amount of $1,500,000.00 from the State of Washington and several individuals, including the Warden and the Doctor of the prison.

He cited 28 U.S.C. § 1343 as conferring jurisdiction in the District Court, and alleged that he had “undergone cruel and unusual treatment” when the defendants, in violation of the Statutes of the State of Washington, placed him in a ■“strip cell” without a bed or covering ■of blankets or garments of any kind. He also alleged he was denied a complete medical examination when requested, and was refused medication for an active “duodenal ulcer”.

The District Court dismissed the complaint for failure to state a claim upon which relief may be granted. The appellant then filed an amended complaint and documents denominated as follows: (1) Petition for a change of Venue; (2) Demand for change of place of trial; (3) Notice of motion for change of Venue; (4) Motions for a Writ of Ha-beas Corpus Ad Testificandum; (5) Motion for subpoenas in Forma pauperis; (6) Motion for a New trial; (7) Demand for jury trial.

In the amended complaint the appellant ■dropped the individuals and named only the State of Washington as a defendant. He also limited the allegations of mistreatment to an averment that he was deprived of the protection of the statutes of the State of Washington relating to the bed, blankets and clothing to be furnished each convict, and reduced his prayer for damages to $25,000.00.

The District Court considered the “Motion for a New trial” as a motion for reconsideration, and denied it. The court also denied the other motions and “demands”, and dismissed the action. The trial judge thought the appellant was seeking a reconsideration of his ruling on the original complaint, but he misconceived the purpose of the document denominated “Motion for a New trial”, in which appellant alleged, “The Court was justified in dismissing the original complaint. However, the attached amended complaint clearly states a cause of action under said Civil Rights Act. The defendant, by and through the means expressed in the amended complaint, did in fact and in law deprived (sic) affiant of the equal protection of the law”. It is clear that appellant was not seeking reconsideration of the ruling on the original complaint but was asking for a trial on the amended complaint.¹

When the trial court dismissed the original complaint, it did not dismiss the action. The plaintiff could file an amended complaint as a matter of right under Rule 15(a) F.R.Civ.P. This he did. The amended complaint supersedes the original, the latter being treated thereafter as non-existent. Bullen v. De Bretteville, 239 F.2d 824, 833 (CA 9); Nisbet v. Van Tuyl, 224 F.2d 66 (CA 7); Ericson v. Slomer, 94 F.2d 437 (7 Cir.); Meyer v. State Board of Equalization, 42 Cal.2d 376, 267 P.2d 257; 71 C.J.S. Pleading § 321. By filing an amended complaint, plaintiff waives any error in the ruling to the original complaint. Grubbs v. Smith, 86 F.2d 275 (6 Cir.) cert. den. 300 U.S. 658, 57 S.Ct. 437, 81 L.Ed. 867; Aetna Life Ins. Co. v. Phillips, 69 F.2d 901 (CA 10).

The appeal is from the judgment dismissing the action. The dismissal was for failure to state a claim upon which relief may be granted, It is well settled that failure to state a claim calls for a judgment on the merits (Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939) but here the plaintiff should not be deprived of the opportunity to seek relief in the state courts as the dismissal should be for lack of jurisdiction. In the words of Mr. Justice Holmes,² “Jurisdiction is authority to decide the case either way.” Here the District Court was without power to ultimately decide whether plaintiff’s claim against the State of Washington was good or bad.

Congress has not authorized actions against a state under the Civil Rights Act (Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492; Williford v. People of California, 352 F.2d 474 (CA 9); Charlton v. City of Hialeah, 4 Cir., 188 F.2d 421), and the Supreme Court has admonished federal courts to “scrupulously confine their own jurisdiction to the precise limits which the statute has defined”. Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248. .Unlike Williford, supra, in the instant case the State is the sole defendant and the district court did not have the power to decide the plaintiff’s claim, or any part of it. Charlton v. City of Hialeah, supra, 188 F.2d at page 423. Under the circumstances, the district court was not required to issue summons or follow the other procedural steps set forth in Armstrong v. Rushing, 352 F.2d 836 (CA 9). Indeed, it was not within the scope of the Court’s authority to do more than note its lack of jurisdiction to proceed further with the case.

If the appellant is entitled to any relief against the State of Washington, it can be obtained only in the courts of that State.

The judgment is modified so that the dismissal shall not operate as an adjudication on the merits. As so modified, it is affirmed.

1 . In the “Petition for a Change of Venue” filed with the amended complaint, the appellant alleged, * * * “the complaint has been amended, sufficiently to state a cause of action under the Federal Civil Rights Act, and in view of the fact that the amended complaint deals only with the defendant depriving plaintiff of the protection of RCW 72.08.100, Subsection one; and all complaints with respect to affiant not receiving proper medical attention has been withdrawn. Whereas, with the amended complaint as it stands now, affiant does not ask the court to consider any of his objections to punishment for infraction of prison rules because there is no such objections.”

2 . The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716.