354 F2d 241 Wallen v. B J Rhay

354 F.2d 241

Neil C. WALLEN, Appellant,
v.
B. J. RHAY, Warden, et al., Appellees.

No. 20246.

United States Court of Appeals Ninth Circuit.

January 7, 1966.

Appeal from the United States District Court for the Eastern District of Washington; Charles L. Powell, Judge.

Neil C. Wallen, in pro. per.

John J. O'Connell, Atty. Gen., Olympia, Wash., for appellee.

Before BARNES, KOELSCH and BROWNING, Circuit Judges.

PER CURIAM:

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1

The brief for appellant received December 16, 1965, is ordered filed.

2

In this civil rights case, brought by a state prisoner against the warden and several other prison officials, the District Court dismissed plaintiff's complaint without leave to amend.

3

Although the complaint fails to state a claim, we are clear that the plaintiff should have been given the right to amend. The cause of action is remanded so that he may amend.

4

Cf. Armstrong v. Rushing, 352 F.2d 836, 9th Cir., decided November 15, 1965.