Yale Simons v. United States, 480 F.2d 805 (9th Cir. 1973). · Go Syfert
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Yale Simons v. United States, 480 F.2d 805 (9th Cir. 1973). Cases Citing This Book View Copy Cite
260 citation events (136 in the last 25 years) across 50 distinct courts.
Strongest positive: Nicholas v. Tucker (ca2, 1997-05-27)
Treatment trajectory · 1973 → 2026 · click a year to view as-of
1973 1999 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
cited Cited "see" Nicholas v. Tucker
2d Cir. · 1997 · signal: see · confidence high
See Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir.1983) (opinion of Cardamone, J.) (quoting Jones v. Bales, 58 F.R.D. 453, 463-64 (N.D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir.1973)).
cited Cited "see" Jason B. Nicholas v. Edward Tucker, Deputy Superintendent for Programs, Woodbourne Correctional Facility Clayton Cook, Corrections Officer, Woodbourne Correctional Facility Tammi Malone, Keyboard Specialist, Woodbourne Correctional Facility New York State Department of Correctional Services Beatty, Lieutenant, Woodbourne Correctional Facility Julkerski, Sergeant, Woodbourne Correctional Facility Donald Selsky, Director, Special Housing Unit/inmate Disciplinary Program, New York State Department of Correctional Facility, Jason B. Nicholas, on Behalf of All Others Similarly Situated v. T.J. Miller, Acting Superintendent/deputy Superintendent for Programs, Woodbourne Correctional Facility Robert Hanslmaier, Superintendent, Woodbourne Correctional Facility, New York State Department of Correctional Services
2d Cir. · 1997 · signal: see · confidence high
See Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir.1983) (opinion of Cardamone, J.) (quoting Jones v. Bales, 58 F.R.D. 453, 463-64 (N.D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir.1973)).
cited Cited "see" Frazier v. Federal Bureau of Investigation
E.D. La. · 1995 · signal: see · confidence high
See Jones v. Bales, 58 F.R.D. 453, 458 (N.D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir.1973). .
discussed Cited "see" Joseph Carroll v. Paul A. Gross, Sr., Bette Ellen Quial, Patricia A. Seitz
11th Cir. · 1993 · signal: see · confidence high
At any stage of the proceedings, a case is frivolous for section 1915(d) when it appears the plaintiff “has little or no chance of success.” Menendez, 817 F.2d at 740 ; see Jones v. Bales, 58 F.R.D. 453, 463-66 (1972) (dismissing under section 1915(d) after filing of defensive pleadings and affidavits by all parties), aff'd adopting district court opinion, 480 F.2d 805 (5th Cir.1973). 1 A district court may conclude a case has little or no chance of success and dismiss the complaint before service of process when it determines from the face of the complaint that the factual allegations are…
cited Cited "see" Johnny Calvin Bailey v. Glenn Johnson, M.D.
5th Cir. · 1988 · signal: see · confidence high
See Jones v. Bales, 58 F.R.D. 453, 463-64 (N.D.Ga.1972), aff'd on the basis of the district court’s opinion, 480 F.2d 805 (5th Cir.1973).
discussed Cited "see" Painter v. Whitley
E.D. La. · 1988 · signal: see · confidence high
See Jones v. Bales, 58 F.R.D. 453, 458 (N.D.Ga. 1972) (the general venue provision in 28 U.S.C. § 1391 (b) governs § 1983 claims), aff’d per curiam on the opinion below, 480 F.2d 805 (5th Cir.1973). .
discussed Cited "see" Marcus B. Harris v. Manuel Menendez, Mr. Hermida, State Attorney, C.N. Pisano, Sheriff (2×)
11th Cir. · 1987 · signal: see · confidence high
See generally, Jones v. Bales, 587 F.R.D. at 465 n. 4 (past lack of success relevant to consideration of chances of ultimate success), aff'd 480 F.2d 805 (5th Cir.1973) 7 The concurring opinion argues that there is no need to reach the question of the scope of a district court's power to dismiss an IFP action as frivolous pursuant to section 1915(d), because the complaint fails to state a claim under Fed.R.Civ.P. 12(b)(6) in any event.
discussed Cited "see" Green v. Jenkins
W.D. Mo. · 1978 · signal: see · confidence high
See, generally, Jones v. Bales, 58 F.R.D. 453, 463 (N.D.Ga.1972), aff’d 480 F.2d 805 (5th Cir. 1973); Jones v. Ault, 67 F.R.D. 124, 127 (S.D.Ga.1973), aff’d 516 F.2d 898 (5th Cir. 1975); Boston v. Stanton, 450 F.Supp. 1049 (W.D.Mo.1978); State of Louisiana ex rel.
cited Cited "see" Croy v. Skinner
N.D. Ga. · 1976 · signal: see · confidence high
See Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972), aff’d, 480 F.2d 805 (5th Cir. 1973) (per curiam).
discussed Cited "see" Ervin v. Lanier
E.D.N.Y · 1975 · signal: see · confidence high
Two possibilities suggest themselves: the Court could impose either the one year period generally applicable in intentional tort actions under CPLR § 215, or the three year period governing actions (such as those arising under the Civil Rights Act) based upon a liability created by statute, CPLR § 214; see Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir. 1973).
discussed Cited "see, e.g." Ronald Weaver Leo McKaye Morris Martin v. Raymond Toombs Robert Brown, Jr. Donald Mason Robert Mulvaney Ted Strassburg (2×)
6th Cir. · 1991 · signal: see also · confidence low
See also Jones v. Bales, 58 F.R.D. 458, 463 (N.D.Ga.1972), affd per curiam, 480 F.2d 805 (5th Cir.1973).
discussed Cited "see, e.g." Johnson v. Baskerville
E.D. Va. · 1983 · signal: see also · confidence low
See also Jones v. Bales, 58 F.R.D. 453, 463 (N.D.Ga. 1972), aff’d., 480 F.2d 805 (5th Cir.) (especially broad discretion of courts in prisoner civil rights actions); Boyce v. Alizaduh, 595 F.2d 948 , 951 n. 6 (4th Cir. 1979).
discussed Cited "see, e.g." Peck v. South Dakota Penitentiary Employees
S.D. · 1983 · signal: see also · confidence low
The authority for early dismissal of frivolous claims is necessary, especially when dealing with prisoners whose primary motivation for commencing legal actions is the hope of a “short sabbatical to the nearest federal courthouse.” Cruz v. Beto, 405 U.S. 319, 327 , 92 S.Ct. 1079, 1084 , 31 L.Ed.2d 263, 271 (1972) (Rehnquist, J., dissenting); see also Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972), aff’d, 480 F.2d 805 (5th Cir.1973).
cited Cited "see, e.g." Ronald P. Richardson v. Les Fleming
5th Cir. · 1981 · signal: see also · confidence low
See also Jones v. Bales, supra. 17 .
cited Cited "see, e.g." Carter v. Telectron, Inc.
S.D. Tex. · 1977 · signal: see, e.g. · confidence low
See, e. g., Jones v. Bales, 58 F.R.D. 453, 463 (N.D.Ga.1972), aff’d per curiam, 480 F.2d 805 (5th Cir. 1973).
cited Cited "see, e.g." Carter v. Telectron, Inc.
S.D. Tex. · 1977 · signal: see, e.g. · confidence low
See, e. g., Jones v. Bales, 58 F.R.D. 453, 463 (N.D.Ga. 1972), aff'd per curiam, 480 F.2d 805 (5th Cir. 1973).
cited Cited "see, e.g." Coleman v. Crisp
W.D. Okla. · 1977 · signal: see also · confidence low
See also Walker v. Weaver, supra, where the court denied leave to proceed in forma pauperis and Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972), affmd., 480 F.2d 805 .
discussed Cited "see, e.g." Johnny J. E. Meadows v. Lon Evans, Sheriff, Tarrant County, Texas
5th Cir. · 1977 · signal: see, e.g. · confidence low
See, e. g., Jones v. Bales, 58 F.R.D. 453, 460 (N.D.Ga.1972), aff’d, 480 F.2d 805 (5th Cir. 1973); Williams v. Liberty, 461 F.2d 325, 327 (7th Cir. 1972); Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir.), cert. denied, 400 U.S. 846 , 91 S.Ct. 93 , 27 L.Ed.2d 84 (1970). .
Retrieving the full opinion text from the archive…
Yale SIMONS, Plaintiff,
v.
UNITED STATES of America, Defendant
71-2263.
Court of Appeals for the Ninth Circuit.
Jul 19, 1973.
480 F.2d 805
A. Alexander Katz, Phoenix, Ariz. (argued), for plaintiff., Michael B. Scott (argued), William C. Smitherman, U. S. Atty., N. Warner Lee, Asst. U. S. Atty., Phoenix, Ariz., for defendant., Sheldon Mitchell, American Civil Liberties Union, Phoenix, Ariz., for amicus curiae.
Carter, Hufstedler, Pregerson.
Cited by 1 opinion  |  Published

Lead Opinion

OPINION

Dissent

JAMES M. CARTER, Circuit Judge

(dissenting):

The majority has made the following order:

“The cause is remanded to the district court for the limited purpose of its answering the following question:

“In dismissing the ‘petition’ for lack of jurisdiction, did the court deem the ‘petition’ theretofore amended to state a claim under the Tucker Act (28 U.S.C. § 1346(a)(2)), as requested by petitioner-plaintiff in his memorandum filed March 17, 1971?”

The order is an exercise in futility. The majority is apparently intrigued by the prospect of a constitutional attack on the present statutes governing forfeiture of automobiles.

The appellant filed in the United States District Court a “petition” for a remission of forfeiture of an automobile. The United States was named as respondent. Appellant was not a party to thé security agreement on the car but was an accommodation endorser of a promissory note. Later, after paying off the note, he claimed to be subrogated to the title to the car.

The district court, on the Government’s motion, dismissed the action for lack of jurisdiction.

The petitioner in a reply memorandum in the district court had requested the pleading be amended to show reliance on the Tucker Act, 28 U.S.C. § 1346(a)(2). No motion, as such, was made to amend[*806] the “petition”. He urges here jurisdiction under that Act to support his claim.

The district court correctly dismissed for lack of jurisdiction. Unlike most forfeiture eases, the Government is not the plaintiff.

We need not determine now, or when the case comes back to us, whether the court relied upon the Tucker Act, 28 U.S.C. § 1346, for dismissal of the action. Under the law of this Circuit, even where the Government is the plaintiff in the action, obviating any problem of the right to sue the Government under the Tucker Act, our cases squarely hold that there is no jurisdiction in the court to grant the relief requested. United States v. Andrade (9 Cir. 1950), 181 F.2d 42; United States v. Bride (9th Cir. 1962), 308 F.2d 470, 474, and United States v. One 1967 Ford Mustang (9 Cir. 1972), 457 F.2d 931. See United States v. Wagner (9 Cir. 1970), 434 F.2d 627.

There are cases in other circuits which hold that the Tucker Act, 28 U.S.C. § 1346, provides jurisidction for an action against the Government to mitigate a forfeiture. United States v. One 1961 Red Chevrolet Impala Sedan (5 Cir. 1972), 457 F.2d 1353 (Tucker Act jurisdiction conceded by the Government); Menkarell v. Bureau of Narcotics (3 Cir. 1972), 463 F.2d 88, and Jaekel v. United States (S.D.N.Y.1969), 304 F.Supp. 993. We can find none in the Ninth Circuit.

Even if the district court, in answer to the question posed to it in the order, states that it deemed the petition amended to state a claim under the Tucker Act, we would still have to affirm under the authorities above, or take the case in banc to overrule them.

This is the poorest possible case for an in banc hearing. The petition was one for remission of forfeiture in the form ordinarily filed with the proper administrative agency. Contrary to Rule 11, Fed. Rules of Civil Procedure, neither the “petition” nor the “amended petition” was signed by an attorney. No motion, as such, was made to amend.

There is a serious question as to petitioner’s standing to contest the forfeiture. He was not a party to the security document under which the car was financed. He was only a guarantor of a promissory note. Petitioner complains of lack of notice of the forfeiture proceedings. The Government should not be required to make a title search to ascertain whether someone, not a party to a security agreement on a car under forfeiture proceedings, should receive notice of those proceedings.

In United States v. One 1967 Ford Mustang, supra, Judge Ely rejected a constitutional attack on forfeiture procedures and after citing cases stated, “We are not convinced that we should undertake to breach or hurdle the foregoing wall of authority. Nor, we think, can we override the authority which Congress has delegated to the Attorney General in respect to remission proceedings in cases like these.” 457 F.2d at 932.

The judgment should be affirmed and the case put to rest.