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Davis v. Department of Corrections

United States Court of Appeals, Ninth Circuit
Jul 22, 1971
446 F.2d 644 (9th Cir. 1971)

Summary

reversing district court's dismissal for failure to effect service because "the officers of the court should have effected service."

Summary of this case from Fowler v. Jones

Opinion

No. 26820.

July 22, 1971.

Jerald Leroy Davis, in pro. per.

Jack K. Weber, Cal. Deputy Atty. Gen., Los Angeles, Cal., for appellee.

Before HAMLEY, ELY, and HUFSTEDLER, Circuit Judges.


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He challenged the constitutionality of a part of California's parole revocation procedure pursuant to which his parole was revoked and his sentence refixed to life imprisonment.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 forma 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.


Summaries of

Davis v. Department of Corrections

United States Court of Appeals, Ninth Circuit
Jul 22, 1971
446 F.2d 644 (9th Cir. 1971)

reversing district court's dismissal for failure to effect service because "the officers of the court should have effected service."

Summary of this case from Fowler v. Jones

In Davis v. Department of Corrections, 446 F.2d 644 (9th Cir. 1971), we held that the district court's dismissal of an action brought by a plaintiff proceeding in forma pauperis for failure to effect service was erroneous because under 28 U.S.C. § 1915(c) the officers of the court should have effected service.

Summary of this case from Puett v. Blandford

In Davis v. Department of Corrections, 446 F.2d 644 (9th Cir. 1971), the Court of Appeals held that the district court's dismissal of an action brought by a plaintiff proceeding in forma pauperis for failure to effect service was erroneous because under 28 U.S.C. § 1915(c) the officers of the court should have effected service.

Summary of this case from Mitchell v. Smith
Case details for

Davis v. Department of Corrections

Case Details

Full title:Jerald Leroy DAVIS, Petitioner-Appellant, v. DEPARTMENT OF CORRECTIONS et…

Court:United States Court of Appeals, Ninth Circuit

Date published: Jul 22, 1971

Citations

446 F.2d 644 (9th Cir. 1971)

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