*1 pressly an “illustration” stated finding support a “evidence sufficient question is its what the matter
proponent no there was claims.” Since
objection at the trial use recognizes that,
form, appellant to be sus court, any have this error would
tained any plain error. If there was form, using application does not plain
amount to error. remaining have
We considered appellants of the and have
contentions merit.
found them without of the district court Shelley (argued), Elizabeth Mercer Affirmed. Legal Anawalt, Howard National Pro- gram Poor, on Health Problems of Angeles, Cal., plaintiff-appellant.
Los Marjory Parker, Deputy Winston Cal., Atty. (argued), Sacramento, Gen. defendants-appellees. Boyd MACKEY, Plaintiff- James MERRILL, WRIGHT, Appellant, KILKENNY, Circuit al., Raymond et K. PROCUNIER MERRILL, Judge: Defendants-Appellees. serving prisoner, is a state imprisonment at State term of Folsom a United States Prison, Represa, He has California. Ninth brought charging this action violation rights by cruel his civil virtue by him treatment received Facility Va- at the California Medical consent, he With his caville pur- been sent to Vacaville had undergoing
pose shock persona, propria complaint, filed in his that, alleges consent and without his he part of not as a shock consented, he adminis- he had which drug, succinycholine, he which tered “breath-stopping and characterizes as ‘fright drug.’ paralyzing conse- As a ‘guinea-pig’ quence calls “this what he alleges regularly that he he treatment” nightmares he relives suffers experience and awakens charges the de- He unable breathe. malicious “deliberate and fendants with and emo- infliction intentional great causing plaintiff distress, tional resulting mind, body in a se- pain of disturbance.” vere *2 charges for fail the extent to which such can be to dismiss moved Defendants upon relief substantiated. a claim ure to state granted. Fed.R.Civ.P. could The District Court the com- motion, and granting the 12(b)(6). In against plaint Pope and as defendants concluding of violation no claim that in Procunier that further reason stated, the was of civil allege complaint “specifically the did riot allegations the com of the treated by participation them in the malpractice as and plaint claims of as * * * wrongful conduct. The com- propriety asking the assess the court to allege administering plaint did that It of particular course of a “acting through doctor was under and however, claims were clear, that is authority” of these defendants. go beyond this. far intended in From the claims elaboration of the memoranda, plain- appear to dis- that hearing the motion would on Prior participa- general of tiff plaintiff the services seeks establish secured miss program experimentation memoranda tion in a of counsel relying solely principles of memo- opposition These and is not on to the motion. light respondeat superior defend- on the nature as to these further randa cast plaintiff’s ants. claim. plaintiff’s drug nature claim
The nature of the was discussed. While adjunct respects with to elec- in all these not stated recommended as an was It is by therapy specificity complaint in the drafted as a relaxant tric-shock him, conjunction of anes- filed in connection with memoranda administration clearly indi- for ad- motion to is not with the dismiss thesia. It recommended patients, fully by to the was meant reference conscious cate what ministration “guinea-pig” apparently ef- to “deliber- because of its in memoranda that ate and malicious infliction fects. It is asserted engaged in med- Leave emotional distress.” staff at Vacaville is sought. complaint psychiatric experimentation amend the not ical and was However, response plaintiff’s mem- with of criminal “aversive treatment” succiny- offenders, including oranda, accepted “in defendants them as the use of fully patients.1 It to the com- on the nature amendment choline conscious subject- allegations.” emphasized plaint” There plaintiff is was and as “new experimentation consent. ed to without no doubt that defendants were can be plaintiff’s notice as nature could, in our Proof such matters an Lack formal articulation claim. judgment, raise constitutional serious complaint protested. amended questions respecting cruel and If is felt amendment such desirable an tinkering punishment2 impermissible or required. could be processes.3 with the mental In our with instruc- it was Reversed remanded to dismiss least, dismissing the ac- ascertaining, the order case tions that without at the (1962). Georgia, appeal Furman 408 U.S. v. brief the contentions Cf. put 239-240, 2726, respect 238, L.Ed.2d arc 92 33 to “aversive treatment’’ S.Ct. Indiana, (1972) ; precisely. 406 U.S. It asserted 346 v. even more 1845, engaged, patient 715, 737, 435 L.Ed.2d defendants are without 92 S.Ct. 32 (1972). consent, experimen in a course of medical instilling whether, tation to ascertain See, g., Baird, e. 405 U.S. Eisenstadt v. 1029, accompan fright pain, and infliction of 438, 452, 349 L.Ed.2d 92 S.Ct. 31 by psychological suggestion, ied behavior 557, Stanley (1972) ; Georgia, 394 U.S. g., patterns E. Brief for can be affected. 564, 1243, L.Ed.2d 542 22 89 S.Ct. 9; 5 and accom at 15 n. 113, Wade, (1968). 410 Roe v. U.S. Cf. panying text. 725-727, 149-154, L.Ed. 35 93 S.Ct. See, (1973). g., California, e. U. 2d Robinson 370 147 660, 667, 758 82 8 L.Ed.2d S.Ct. vacated, proceed- further ings. Judge WRIGHT, A.
EUGENE
(dissenting):
Respectfully, dissent. The record *3 court us
before the district and before appellant
convinces me that consented given Malpractice
the treatment him. penal institu- physician in a state give rise to a civil tion does Rhay, Riley 407 F.2d
action. 1969).
(9th Cir. Holliday, City, Mo.,
Harold L. Kansas appendix appellant. filed and brief Hurn, Atty., Bert C. U. S. and Paul Anthony White, Atty., Kan- Asst. U. City, Mo., appellee. sas filed brief America, STATES UNITED Appellee, GIBSON, ROSS, BRIGHT JACKSON, Appellant. H. Charles PER CURIAM. States United charged Eighth A nine-count indictment aiding defendant and as- April Submitted sisting presenta- Decided Revenue to the Internal Service
materially false and fraudulent Individu- al Forms in violation Income Tax 1040 7206(2). The of 26 Govern- U.S.C. § II, VIII, IX ment Counts prior of the case to to submission jury.1 jury found the defendant acquitted guilty III Counts V, VI, IV, and VII. him of Counts appeal- argues The defendant al- not have should the District Court documentary evidence lowed admitted jury room and be taken give refusing to District Court erred testimony relating an instruction Finding conten- these accomplice. convic- meritless, affirm tions we tion. Missouri, pre Judge, District Oliver, Western States United John W. Honorable sided.