Dodd v. Spokane Cnty., 393 F.2d 330 (9th Cir. 1968). · Go Syfert
Search
Dodd v. Spokane Cnty., 393 F.2d 330 (9th Cir. 1968). Cases Citing This Book View Copy Cite
142 citation events (7 in the last 25 years) across 46 distinct courts.
Strongest positive: John Ho v. Frederick Russi (ca9, 2022-08-19)
Treatment trajectory · 1968 → 2026 · click a year to view as-of
1968 1997 2026
Top citers, strongest first. 36 distinct citers. How cited ↗
cited Cited as authority (rule) John Ho v. Frederick Russi
9th Cir. · 2022 · confidence medium
See, e.g., Harmon v. Superior Ct., 307 F.2d 796 , 798 (9th Cir. 1962); Dodd v. Spokane County, 393 F.2d 330, 334 (9th Cir. 1968).
discussed Cited as authority (rule) Scholastic Entertainment, Inc. v. Fox Entertainment Group, Inc.
9th Cir. · 2003 · confidence medium
While a party is entitled to notice and an opportunity to respond when a court contemplates dismissing a claim on the merits, Franklin v. Oregon, 662 F.2d 1337, 1340-41 (9th Cir.1981); Dodd v. Spokane County, 393 F.2d 330, 334 (9th Cir.1968), it is not so when the dismissal is for lack of subject matter jurisdiction.
cited Cited as authority (rule) Snyder v. Talbot
D. Me. · 1993 · confidence medium
In general, a court may not take such action “without notice to plaintiff ... affording him an opportunity to at least submit a written argument in opposition thereto.” Dodd, 393 F.2d at 334.
cited Cited as authority (rule) Woods v. Princeton Packaging, Inc.
W.D. Wash. · 1987 · confidence medium
Jenkins v. McKeithen, 395 U.S. 411 , 89 S.Ct. 1843 , 23 L.Ed.2d 404 (1969); Dodd v. Spokane County, 393 F.2d 330, 334 (9th Cir.1968).
discussed Cited as authority (rule) Soto v. City of Sacramento
E.D. Cal. · 1983 · confidence medium
Allison v. California Adult Authority, 419 F.2d 822, 823 (9th Cir.1969); Wiltsie v. California Department of Corrections, 406 F.2d 515, 517 (9th Cir.1968); Dodd v. Spokane County, Washington, 393 F.2d 330, 334 (9th Cir.1968); Brown v. Brown, 368 F.2d 992, 993 (9th Cir.1966).
cited Cited as authority (rule) Johnson v. Baskerville
E.D. Va. · 1983 · confidence medium
Id. at 334.
discussed Cited as authority (rule) Franklin v. State of Or.
D. Or. · 1983 · confidence medium
Because sua sponte dismissal as frivolous under section 1915(d) is often essentially for failure to state a claim, the question arises whether I must follow the procedural steps outlined in Dodd, 393 F.2d at 334.
discussed Cited as authority (rule) Irving Trust Co. v. Nationwide Leisure Corp.
S.D.N.Y. · 1982 · confidence medium
Although no formal motion has been made to strike the notice requirement as a defense or for other, similar relief, the court has the power to resolve this issue on its own motion, see Leonhard v. United States, 633 F.2d 599, 609, n.11 (2d Cir. 1980), cert. denied, 451 U.S. 908 , 101 S.Ct. 1975 , 68 L.Ed.2d 295 (1981) (sua sponte dismissal of complaint); Dodd v. Spokane County, Washington, 393 F.2d 330, 334 (9th Cir. 1968), so long as notice and an opportunity to be heard is provided interested parties.
cited Cited as authority (rule) Nodleman v. Aero Mexico
C.D. Cal. · 1981 · confidence medium
Hahn, Inc. v. Codding, 615 F.2d 830, 834 (9th Cir. 1980); Dodd v. Spokane County, Washington, 393 F.2d 330, 334 (9th Cir. 1968).
discussed Cited as authority (rule) Harry Franklin v. State of Oregon, State Welfare Division (2×)
9th Cir. · 1981 · confidence medium
Dodd v. Spokane County, 393 F.2d 330, 334 (9th Cir. 1968).
discussed Cited as authority (rule) Irving Trust Co. v. Nationwide Leisure Corp.
S.D.N.Y. · 1981 · confidence medium
Although no formal motion has been made to strike the notice requirement as a defense or for other, similar relief, the court has the power to resolve this issue on its own motion, see Leonhard v. United States, 633 F.2d 599, 609, n.11 (2d Cir. 1980), cert. denied, 451 U.S. 908 , 101 S.Ct. 1975 , 68 L.Ed.2d 295 (1981) (sua sponte dismissal of complaint); Dodd v. Spokane County, Washington, 393 F.2d 330, 334 (9th Cir. 1968), so long as notice and an opportunity to be heard is provided interested parties.
discussed Cited as authority (rule) Keith Forsyth v. Richard G. Kleindienst, Individually and as Attorney General of the United States, L. Patrick Gray, 3rd, Individually and as Acting Director, Federal Bureau of Investigation, John N. Mitchell, Individually and as Former Attorney General of the United States, John Doe and Richard Roe, Albert Cooper and David Porter. Appeal of John N. Mitchell, E. Davis Porter, and Albert Cooper. Katherine W. Burkhart, Judith Chomsky, Eva Gold, Dina Portnoy, Candy Putter, Joshua (Josh) Markel v. William Saxbe, Individually and as Attorney General of the United States, Clarence Kelley, Director, Federal Bureau of Investigation, John N. Mitchell, Individually and as Former Attorney General of the United States, John Doe, and Richard Roe, Appeal of John N. Mitchell, Clarence Kelley, and William Saxbe
3rd Cir. · 1979 · confidence medium
See Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir. 1974) (absolute immunity does not relate to acts done in the prosecutor's investigatory role); Hampton v. City of Chicago, 484 F.2d 602 (7th Cir. 1973), Cert. denied, 415 U.S. 917 , 94 S.Ct. 1413 , 39 L.Ed.2d 471 (1974) (states attorney not absolutely immune for planning and executing illegal raid); McCray v. Maryland, 456 F.2d 1 (4th Cir. 1972); Dodd v. Spokane County, Washington, 393 F.2d 330, 335 (9th Cir. 1968).
discussed Cited as authority (rule) Forsyth v. Kleindienst
3rd Cir. · 1979 · confidence medium
See Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir. 1974) (absolute immunity does not relate to acts done in the prosecutor’s investigatory role); Hampton v. City of Chicago, 484 F.2d 602 (7th Cir. 1973), cert. denied, 415 U.S. 917 , 94 S.Ct. 1413 , 39 L.Ed.2d 471 (1974) (states attorney not absolutely immune for planning and executing illegal raid); McCray v. Maryland, 456 F.2d 1 (4th Cir. 1972); Dodd v. Spokane County, Washington, 393 F.2d 330, 335 (9th Cir. 1968).
cited Cited as authority (rule) Ramsey v. United States
N.D. Ill. · 1978 · confidence medium
See, e. g., Literature, Inc. v. Quinn, supra at 374; Dodd v. Spokane County, Washington, 393 F.2d 330, 334 (9th Cir. 1968); Hutchinson v. Proxmire, 431 F.Supp. 1311, 1333 (W.D.Wis.1977). 8 .
discussed Cited as authority (rule) Briggs v. Goodwin
D.C. Cir. · 1977 · confidence medium
See Apton v. Wilson, 165 U.S.App.D.C. 22, 30, 32-33 , 506 F.2d 83, 91, 93-94 (1974); Guerro v. Mulhearn, 498 F.2d 1249, 1256 (1st Cir. 1974); Hampton v. City of Chicago, 484 F.2d 602, 608-09 (7th Cir. 1973) (Stevens, J.), cert. denied, 415 U.S. 917 , 94 S.Ct. 1413 , 39 L.Ed.2d 471 (1974); Littleton v. Berbling, 468 F.2d 389, 410-11 (7th Cir. 1972), cert. denied, 414 U.S. 1143 , 94 S.Ct. 894 , 39 L.Ed.2d 97 (1974); Dodd v. Spokane County, Washington, 393 F.2d 330, 335 (9th Cir. 1968); Robichaud v. Ronan, 351 F.2d 533, 536-37 (9th Cir. 1965); Tomko v. Lees, 416 F.Supp. 1137, 1139 (W.D.Pa.1976), …
discussed Cited as authority (rule) Briggs v. Goodwin
D.C. Cir. · 1977 · confidence medium
See Apton v. Wilson, 165 U.S.App.D.C. 22, 30, 32-33 , 506 F.2d 83, 91, 93-94 (1974); Guerro v. Mulhearn, 498 F.2d 1249, 1256 (1st Cir. 1974); Hampton v. City of Chicago, 484 F.2d 602, 608-09 (7th Cir. 1973) (Stevens, J.), cert. denied, 415 U.S. 917 , 94 S.Ct. 1413 , 39 L.Ed.2d 471 (1974); Littleton v. Berbling, 468 F.2d 389, 410-11 (7th Cir. 1972), cert. denied, 414 U.S. 1143 , 94 S.Ct. 894 , 39 L.Ed.2d 97 (1974); Dodd v. Spokane County, Washington, 393 F.2d 330, 335 (9th Cir. 1968); Robichaud v. Ronan, 351 F.2d 533, 536-37 (9th Cir. 1965); Tomko v. Lees, 416 F.Supp. 1137, 1139 (W.D.Pa.1976), …
cited Cited as authority (rule) Frank S. Waits v. Hon. Raymond McGowan A. J. S. C., Monmouth County
3rd Cir. · 1975 · confidence medium
Dodd v. Spokane County, Washington, 393 F.2d 330, 335 (9th Cir. 1968); Balistrieri v. Warren, 314 F.Supp. 824, 826 (W.D.
discussed Cited as authority (rule) California Diversified Promotions, Inc. v. James A. Musick
9th Cir. · 1974 · confidence medium
Pierson v. Ray, 386 U.S. 547, 555 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967); Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961); Dodd v. Spokane County Washington, 393 F.2d 330, 335 (9th Cir. 1968); Sheridan v. Williams, 333 F.2d 581, 582-583 (9th Cir. 1964); York v. Story, 324 F.2d 450 (9th Cir. 1963).
cited Cited as authority (rule) Clinton Community Hospital Corp. v. Southern Maryland Medical Center
D. Maryland · 1974 · confidence medium
As the Ninth Circuit noted in Dodd v. Spokane County, Washington, 393 F.2d 330, at 334 (1968), [T]he court in practical effect invoked on its own motion Rule 12(b)(6), Fed.R.Civ.P.
discussed Cited as authority (rule) Juanita Williams v. Police Officer Gould and City of Los Angeles
9th Cir. · 1973 · confidence medium
Pierson v. Ray, 386 U.S. 547, 555 , 87 S.Ct. 1213, 1218 , 18 L.Ed.2d 288 (1967); see Handverger v. Harvill, 479 F.2d 513, 516 (9th Cir. 1973); Dodd v. Spokane County, Washington, 393 F.2d 330, 335 (9th Cir. 1968); Notaras v. Ramon, 383 F.2d 403 (9th Cir. 1967).
cited Cited as authority (rule) Literature, Inc. v. Robert H. Quinn
1st Cir. · 1973 · confidence medium
Dodd, supra, 393 F.2d at 334.
discussed Cited as authority (rule) Johnson v. Glick
2d Cir. · 1973 · confidence medium
The first case in the line is Brown v. Brown, 368 F.2d 992 (9 Cir. 1966), where, however, the complaint alleged other deprivations of civil rights. 2 This was followed by Dodd v. Spokane County, 393 F.2d 330, 333-334 (9 Cir. 1968), although the complaint there alleged not brutality simpliciter but the administration of violence in an effort to cause Dodd to testify falsely in another’s criminal trial.
discussed Cited as authority (rule) Michael E. Remmers v. Lou v. Brewer, Warden
8th Cir. · 1973 · confidence medium
See e.g., Sanders v. Veterans Administration, 450 F.2d 955, 956 (9th Cir. 1971); Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir. 1970); Dodd v. Spokane County Washington, 393 F.2d 330, 334 (9th Cir. 1968); Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir. 1965); Harmon v. Superior Court, 307 F.2d 796 , 798 (9th Cir. 1962).
cited Cited as authority (rule) John Gillibeau v. City Of Richmond
9th Cir. · 1969 · confidence medium
See Pierson v. Ray, 386 U.S. 547, 557 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 ; Dodd v. Spokane County Washington, 393 F.2d 330, 335 (9th Cir. 1968).
cited Cited as authority (rule) Gillibeau v. City of Richmond
9th Cir. · 1969 · confidence medium
See Pierson v. Ray, 386 U.S. 547, 557 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 ; Dodd v. Spokane County Washington, 393 F.2d 330, 335 (9th Cir. 1968).
cited Cited as authority (rule) Jerry S. Diamond v. Peter J. Pitchess, Sheriff
9th Cir. · 1969 · confidence medium
See Monroe v. Pape, 365 U.S. 167, 187-192 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961); Dodd v. Spokane County, Washington, 393 F.2d 330, 334-335 (9th Cir. 1968).
cited Cited "see" The Squaxin Island Tribe v. The State of Washington
9th Cir. · 1986 · signal: see · confidence high
See Dodd v. Spokane County, 393 F.2d 330 , 334 (9th Cir.1968).
discussed Cited "see, e.g." Freeze v. McDermott
W.D. Wash. · 2023 · signal: see also · confidence low
Omar v. Sea-Land Serv., Inc., 813 F.2d 986 , 991 (9th Cir. 1987) 6 (citing Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981)); see also Franklin v. State of 7 Oregon, State Welfare Div., 662 F.2d 1337, 1341 (9th Cir. 1981) (citing Dodd v. Spokane 8 Cnty., 393 F.2d 330 , 334 (9th Cir. 1968)).
discussed Cited "see, e.g." Amana Global Company v. King County Flood Control Zone District
W.D. Wash. · 2023 · signal: see also · confidence low
Omar v. Sea-Land Serv., Inc., 813 F.2d 986 , 991 (9th Cir. 1987) 16 (citing Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981)); see also Franklin v. State of 17 Oregon, State Welfare Div., 662 F.2d 1337, 1341 (9th Cir. 1981) (citing Dodd v. Spokane 18 Cnty., 393 F.2d 330 , 334 (9th Cir. 1968)).
discussed Cited "see, e.g." Settle v. Massey
Fla. Dist. Ct. App. · 1986 · signal: compare · confidence low
Compare Dodd v. Spokane County, 393 F.2d 330 (9th Cir.1968) (holding that under Federal Rules of Civil Procedure trial court cannot dismiss on its own motion without notice to plaintiff). 1 Ordinarily, we would adhere to the rule that appellate court review of an order dismissing a complaint with leave to amend must await the entry of a judgment entered against the plaintiff after the latter’s failure or refusal to file an amended complaint in which case the plaintiff would clearly have the right of direct appeal of such judgment.
cited Cited "see, e.g." Mazor v. Shelton
N.D. Cal. · 1986 · signal: compare · confidence low
Compare, Dodd v. Spokane County, 393 F.2d 330 (9th Cir.1968); Robichaud v. Ronan, 351 F.2d 533 (9th Cir.1965).
discussed Cited "see, e.g." Square D Co. v. Niagara Frontier Tariff Bureau, Inc.
2d Cir. · 1985 · signal: see also · confidence medium
Lewis v. New York, 547 F.2d 4 , 5-6 & n. 4 (2 Cir.1976) (“Failure to afford an opportunity to address the court’s sua sponte motion to dismiss is, by itself, grounds for reversal”); Schlesinger Investment Partnership v. Fluor Corp., 671 F.2d 739, 742-43 (2 Cir.1982); see also Dodd v. Spokane County, 393 F.2d 330, 334 (9 Cir.1968); Literature, Inc. v. Quinn, 482 F.2d 372, 374 (1 Cir.1973).
discussed Cited "see, e.g." Square D Company v. Niagara Frontier Tariff Bureau, Inc.
2d Cir. · 1985 · signal: see also · confidence low
Lewis v. New York, 547 F.2d 4 , 5-6 & n. 4 (2 Cir.1976) ("Failure to afford an opportunity to address the court's sua sponte motion to dismiss is, by itself, grounds for reversal"); Schlesinger Investment Partnership v. Fluor Corp., 671 F.2d 739, 742-43 (2 Cir.1982); see also Dodd v. Spokane County, 393 F.2d 330 , 334 (9 Cir.1968); Literature, Inc. v. Quinn, 482 F.2d 372, 374 (1 Cir.1973).
discussed Cited "see, e.g." Harry Franklin v. Ms. Murphy and Hoyt Cupp
9th Cir. · 1984 · signal: compare · confidence low
Compare Dodd v. Spokane County, Washington, 393 F.2d 330 , 333 n. 3 (9th Cir.1968) (procedural protections required) (dictum) and Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir.1965) (procedural protections required) with Crawford v. Bell, 599 F.2d 890, 893 (9th Cir.1979) (procedural protections not required) (dictum) and Boag v. Boies, 455 F.2d 467, 468-69 (9th Cir.) (per curiam), cert. denied, 408 U.S. 926 , 92 S.Ct. 2509 , 33 L.Ed.2d 338 (1972) (section 1915(d) dismissal proper before service of process) and Williams v. Field, 394 F.2d 329, 330 (9th Cir.), cert, denied, 393 U.S. 891 , 89 …
discussed Cited "see, e.g." Richard A. Handverger v. Richard A. Harvill
9th Cir. · 1973 · signal: see also · confidence low
See also Dodd v. Spokane County, 9 Cir., 1968, 393 F.2d 330 , 335; Wilhelm v. Turner, 8 Cir., 1970, 431 F.2d 177, 182-183 ; Gillibeau v. Richmond, 9 Cir., 1969, 417 F.2d 426 , 429 n. 3; Banish v. Locks, 7 Cir., 1969, 414 F.2d 638 .
cited Cited "see, e.g." Francis J. Savage v. United States of America
8th Cir. · 1971 · signal: compare · confidence medium
Compare Bauers v. Heisel, 361 F.2d 581, 589-590 (CA 3 1961) with Dodd v. Spokane County, Washington, 393 F.2d 330, 335 (CA 9 1968). 3 . Ҥ 541.07.
Retrieving the full opinion text from the archive…
Harry Lee Dodd
v.
Spokane County, Washington, and Agents George A. Kain, Spokane County Prosecutor, Matt Alexander, Deputy Prosecuting Attorney, and Their Sureties on Official Bond William J. Reilly, Sheriff, Spokane County, and His Sureties on Official Bond Capt. D. Holmes, Chief Jailer Deputy Sheriff Raymond Grooms, Sgt. Halverston, Deputy Sheriff and Their Sureties on Official Bond
21577_1.
Court of Appeals for the Ninth Circuit.
Mar 28, 1968.
393 F.2d 330
Cited by 55 opinions  |  Published

393 F.2d 330

Harry Lee DODD, Appellant,
v.
SPOKANE COUNTY, WASHINGTON, and agents et al.; George A.
Kain, Spokane County Prosecutor, Matt Alexander, Deputy
Prosecuting Attorney, and their Sureties on Official Bond;
William J. Reilly, sheriff, Spokane County, and his Sureties
on Official Bond; Capt. D. Holmes, Chief Jailer; Deputy
Sheriff Raymond Grooms, Sgt. Halverston, Deputy Sheriff and
their Sureties on Official Bond, Appellees.

No. 21577.

United States Court of Appeals Ninth Circuit.

March 28, 1968.

Harry Lee Dodd, in pro. per.

George A Kain, Pros. Atty. for Spokane County, Washington, Matt L. Alexander, Deputy Pros. Atty., Spokane, Wash., for appellees.

Before HAMLEY, JERTBERG and BROWNING, Circuit Judges.

HAMLEY, Circuit Judge:

[*~330]1

On July 20, 1966, Harry Lee Dodd, proceeding pro. per., tendered in the district court, for filing, a complaint for damages under the Civil Rights Act, together with his motion and supporting affidavit for leave to proceed in forma pauperis.[1] He named as defendant Spokane County, Washington, the prosecuting attorney and a deputy prosecuting attorney of that county, the sheriff of that county, and three of his deputy sheriffs. Dodd alleged that while he was incarcerated in the Spokane County jail the defendants, conspiring together, subjected him to threats of violence, actual assaults, and other punishing treatment in their effort to force him to testify falsely against one Fred H. Nolon in a criminal trial in which Nolon was a defendant.

2

On the day Dodd tendered his complaint, the district court entered an order granting him leave to proceed in forma pauperis, and the action was docketed as No. 2927 in the district court. On the same day the district court, on its own motion and without issuance or service of process upon defendants, without notice to Dodd, and without affording him an opportunity to submit written argument, entered another order dismissing the complaint. Dodd applied to the district court for leave to appeal in forma pauperis. The district court denied the application. Dodd then renewed, in this court, his application for leave to appeal in forma pauperis.

3

On October 28, 1966, while that application was pending in this court, Dodd tendered in the district court another complaint for damages under the Civil Rights Act, naming the same defendants. This complaint was identical with the original complaint, except that it included an additional paragraph containing allegations which are immaterial insofar as this appeal is concerned. Dodd did not tender this pleading as an amended complaint, but as an original complaint in a new action. Again, Dodd sought leave to procceed in forma pauperis.

4

On the day on which this new complaint and application to proceed in forma pauperis were tendered, the district court granted permission to file the complaint in forma pauperis and that action was docketed as No. 2963 in thd district court. In the same order, on its own motion, and without issuance or serving of process upon defendants, without notice to Dodd, and without affording him an opportunity to submit written argument, the district court dismissed the new complaint with prejudice. The court dismissed the action on the ground that, in all significant aspects, the new complaint was a duplicate of the original complaint.

5

Dodd again applied to the district court for leave to appeal in forma pauperis. The district court denied the application on the ground that the appeal was frivolous. Dodd renewed his application here and it was granted by another panel of this court. At the same time an order was entered consolidating the two appeals.[2]

6

We turn first to the initial appeal, arising from the order of dismissal entered on July 20, 1966, in District Court Cause No. 2927.

[*~331]7

At the outset we must consider, on our own motion, whether the appeal must be dismissed because taken from a non-appealable order. On its face the order dismissed the complaint but not the action. Except under special circumstances making it clear that the district court determined that the action could not be saved by any amendment of the complaint, such an order is not final, and therefore not appealable. See Marshall v. Sawyer, 9 Cir.,301 F.2d 639, 643.

8

In our view, the ground stated by the district judge in dismissing the complaint, to be discussed below indicates that such circumstances exist in this case. We therefore have jurisdiction to entertain the appeal.

9

In dismissing the complaint, the district court did not state that the action is frivolous or malicious, thereby invoking 28 U.S.C. 1915(d) (1964).[3] Instead, the court analyzed the complaint, cited authority and held, in effect, that the complaint does not state a claim upon which relief can be granted.

10

Thus the court, in practical effect, invoked on its own motion Rule 12(b)(6), Federal Rules of Civil Procedure. This the court had the right to do if the proper procedural steps were taken and if the determination is correct on the merits. We hold that the district court erred in both respects.

11

There were two procedural deficiencies: (1) The court did not permit issuance and service of process as required by Rule 4(a), Rederal Rules of Civil Procedure; and (2) The court acted upon the complaint without notice to plaintiff of the proposed action, and without affording him an opportunity to at least submit a written argument in opposition thereto. See Armstrong v. Rushing, 9 Cir., 352 F.2d 836, 837. See also, Wallen v. Rhay, 9 Cir., 354 F.2d 241; Harmon v. Superior Court, 9 Cir., 307 F.2d 796, 798.

12

Coming to the merits of the dismissal, the reason given by the district court for dismissing the action was that, since compensation for an assault can be obtained in the state courts of Washington, the Civil Rights Act affords no remedy to a county jail prisoner who is assaulted in jail by policemen, prosecuting attorneys, sheriffs or other state or county officials.

[*~332]13

This is not an adequate ground for dismissing a civil rights action. The availability of a state remedy does not preclude one from seeking relief under the Civil Rights Act if, in other respects, the complaint states a claim under that Act. See Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492; Cohen v. Norris, 9 Cir., 300 F.2d 24, 34.

14

In Brown v. Brown, 9 Cir., 368 F.2d 992, this court held that a complaint alleging that while the plaintiff was a prison inmate, state officials beat him and caused him various other deprivations of his civil rights, states a claim under the Civil Rights Act, notwithstanding that such allegations tax a reader's credulity. It should also be noted that in the case now before us there is nothing in the complaint to indicate that the violence and threats of violence allegedly visited upon Dodd had anything to do with jail discipline.

15

Defendants do not attempt to defend the dismissal on the ground relied upon by the district court. Instead, they advance two other reasons why the correct result was reached. The first of these is that the allegations in Dodd's complaint concerning assaults upon Dodd and threats of other violence are untrue.

16

In considering a motion to dismiss, made under Rule 12(b)(6), Federal Rules of Civil Procedure, the truth of the facts set forth in the complaint is to be assumed. Brown v. Brown, 9 Cir., 368 F.2d 992, 993. It follows that defendants' argument that the critical allegations of the complaint are false, based on circumstances not revealed by the complaint, provides no support for the order of dismissal.

17

Defendants' remaining argument in support of the order under review is that, as to all of the defendants, their official positions are such that they are immune from suit under the Civil Rights Act.

18

With regard to defendant Spokane County the real question is not whether that defendant in 'immune' from suit within the meaning of the common law doctrine of immunity. Rather, the relevant inquiry is whether a local unit of government is a 'person' within the meaning of the Civil Rights Act, against whom such an action may be brought. The Supreme Court has held that it is not. See Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492. It follows that insofar as defendant Spokane County is concerned the complaint fails to state a claim upon which relief can be granted within the meaning of Rule 12(b)(6).

19

The remaining defendants, consisting of county prosecuting and enforcement officials, may or may not be immune from suit under the Civil Rights Act, depending upon the circumstances which are ultimately shown to exist.

[*~333]20

The defense of good faith and probable cause is available to defendant county sheriff and deputy sheriffs. Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288. If they are not able to establish that defense they have no other immunity from suit under the Civil Rights Act, though of course plaintiff may not be able to prove that they engaged in the alleged acts.

21

Needless to say, the district court could not determine from the allegations of the complaint that these defendants had such a defense. Nor did it even undertake to make such a determination. The court therefore erred in dismissing the action as to defendant sheriff and deputy sheriffs on the ground that the complaint fails to state a claim upon which relief can be granted.

22

Defendants prosecuting attorney and deputy prosecuting attorney are immune from suit under the Civil Rights Act if the acts complained of were performed in connection with their quasijudicial duties. On the other hand, if such acts were committed pursuant to their investigatory duties, then their role is substantially the same as that of policemen or county sheriffs, in which case they have the same defense as indicated above for the defendant county sheriff and deputy sheriffs. See Robichaud v. Ronan, 9 Cir., 351 F.2d 533, 536-538.

23

The district court could not, and did not, undertake to determine from an examination of the complaint that defendant prosecuting attorney and deputy prosecuting attorney were in the performance of quasi-judicial duties at the times in question, or, if then in the performance of investigatory duties, that they were proceeding in good faith and with probable cause. Accordingly, the court erred in dismissing the action as to them on the ground that the complaint fails to state a claim upon which relief can be granted.

24

In view of our disposition of this appeal, Dodd's second civil rights action becomes moot and the appeal therein is dismissed.

25

While, as stated above, the district court erred in not permitting the issuance and service of process, and in acting upon the complaint without notice to Dodd, the fact is that all of the defendants have appeared in this court and Dodd has here fully presented his arguments in opposition to the district court order. For this reason it is not necessary to remand for the purpose of correcting procedural deficiencies.

[*~334]26

Affirmed as to defendant Spokane County and reversed as to the other defendants.

1

The provisions of the Civil Rights Act relied upon by Didd are Rev.Stat. 1979, 1980, 1981 and 722 (1875), 42 U.S.C. 1983, 1985, 1986 and 1988 (1964). Thd district court had jurisdiction under 28 U.S.C. 1343 (1964)

2

The effect of this order was to grant leave to appeal in forma pauperis as to both appeals

3

However, if it be assumed that the district court did proceed under section 1915(d), we would hold that, for the reasons stated below, and with due regard to the broad discretionary power vested in a district court acting under section 1915(d) to dismiss a forma pauperis proceeding as frivolous, it was error to dismiss this action as frivolous