415 F2d 771 Contreras v. Merced High School District

415 F.2d 771

Jesse CONTRERAS and Ron Supat, Plaintiffs-Appellants,
MERCED HIGH SCHOOL DISTRICT et al., Defendants-Appellees.

No. 23875.

United States Court of Appeals Ninth Circuit.

Aug. 13, 1969, Rehearing Denied Sept. 18, 1969.

Dennis Powell, Salinas, Cal. (argued), John P. Kelley, Maurice Jourdane, Ralph S. Abascal, Salinas, Cal., for appellants.

Bert W. Levit (argued), of Long & Levit, San Francisco, Cal., Willard B. Treadwell, Merced County Counsel, Merced, Cal., for appellees.

Before BARNES and HAMLEY, Circuit Judges, and KILKENNY, District judge.1


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The only issue before this court at this time is whether the trial judge acted contrary to law or abused his discretion in denying appellants' petition for a preliminary injunction, pending trial on the merits of a civil action filed pursuant to 42 U.S.C. 1983.


This was originally a class action, but the class character of the action was eliminated by stipulation of the parties.


We hold that the trial court's refusal to issue the preliminary injunction was not erroneous as a matter of law, and not an abuse of its wide judicial discretion. 7 Moore's Federal Practice 1625 (2d ed.1968).


We decline to reach the constitutional questions raised by appellants where issues of fact are involved on less than a full record of an adversary proceeding. Appellants offered only affidavits on this issue, but no oral testimony; hence appellees have had no opportunity to cross-examine on the merits.


We therefore affirm.


Honorable John F. Kilkenny, United States District Judge for the District of Oregon, sitting by designation