Summary
In Bacon, a motion to dismiss was before the court which found that the complaint's deficiency could not be overcome by amendment, and, therefore, dismissal without leave to amend was appropriate.
Summary of this case from Barilla v. Atchison, Topeka & Santa Fe Railway Co.Opinion
No. 25634.
February 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.
Appellants, 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.
Affirmed.