438 F2d 637 Bacon v. People State California

438 F.2d 637

Tommy Leroy BACON, Jerry D. Clark, Edward Ray Fink, Joseph
R. Parks, William J. Carroll, Dinnis Robert
Maddock, William Bryan Ross, Appellants,
PEOPLE of the STATE of CALIFORNIA, R. K. Procunier,
Director, California Department of Corrections, Mr. John
Kerr, Chairman, and all Members and Representatives of
California Adult Authority and L. S. Nelson, Warden, San
Quentin State Prison, Tamal, California, Appellees.

No. 25634.

United States Court of Appeals, Ninth Circuit.

Feb. 9, 1971.

Tommy Leroy Bacon, in pro per.

Evelle J. Younger, Atty. Gen. of Cal., John T. Murphy, George R. Nock, Deputy Attys. Gen., San Francisco, Cal., for appellees.

Before HAMLEY, DUNIWAY and KILKENNY, Circuit Judges.


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Appellant, inmates of San Quentin State Prison, appeal from a district court order dismissing their civil rights action with prejudice.


The theory of plaintiffs' action is that California's indeterminate sentence law is unconstitutional. The law is settled to the contrary. See Bennett v. People of State of California, 406 F.2d 36, 38 (9th Cir. 1969).


Defendants accordingly moved to dismiss the complaint for failure to state a claim. In processing this motion, the district court followed the required procedural steps. Potter v. McCall, 433 F.2d 1087 (9th Cir. 1970). Since it clearly appears from the complaint that the deficiency could not be overcome by amendment, the district court properly dismissed the complaint without leave to amend, thereby dismissing the action.