227 F.Supp. 20 (S.D.Cal. 1964), 63-1269, Roberts v. Barbosa

Docket Nº:63-1269.
Citation:227 F.Supp. 20
Party Name:Steven Eugene ROBERTS, Plaintiff, v. Alexander BARBOSA, Correctional Officer, Department of Corrections, State of California, et al., Defendants.
Case Date:February 24, 1964
Court:United States District Courts, 9th Circuit, Southern District of California

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227 F.Supp. 20 (S.D.Cal. 1964,)

Steven Eugene ROBERTS, Plaintiff,


Alexander BARBOSA, Correctional Officer, Department of Corrections, State of California, et al., Defendants.

No. 63-1269.

United States District Court, S.D. California.

Feb. 24, 1964

Supplemental Opinion May 19, 1964.

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Steven E. Roberts, in pro. per.

Stanley Mosk, Atty. Gen. of California, Los Angeles, Cal., for defendants.

HALL, Chief Judge.

Not unexpectedly to those having experience in the trial of criminal cases, persons convicted of crimes and in the custody of their jailers do not look upon the case of Monroe v. Pape (1961) 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, and numerous other cases decided by the Supreme Court concerning civil rights, as a pronouncement of principles for the redress of genuine grievances or wrongs, but rather as a blackjack to be used indiscriminately, maliciously, and at will to harass and annoy not only their jailers, but Judges, Jurors, witnesses and everyone having anything to do with their conviction. This is such a case.

The plaintiff in this case is imprisoned by the State of California for the crime of escape. He was arrested and tried in San Bernardino County, California.

The Judgment was affirmed on appeal by the Fourth District Court of Appeals (People v. Roberts, 213 Cal.App.2d 387, 28 Cal.Rptr. 839). Hearing was denied by the State Supreme Court, and certiorari was denied by the United States Supreme Court, 375 U.S. 909, 84 S.Ct. 204, 11 L.Ed.2d 149.

Plaintiff's action 1 seeks $2,417,000 in 'punitive' damages and $188,000 in actual damages, based on alleged violations of the Federal Civil Rights Statutes by 44 different defendants, being certain officers of one of the Correctional Institutions of the State of California, the Sheriff of San Bernardino County and certain of his deputies, the District Attorney of San Bernardino County and one of his deputies, all the members of the Board of Supervisors of San Bernardino County, Judges of the Municipal Court of San Bernardino, the Judge of the Superior Court who heard his case, all of the Judges of the District Court of Appeals which affirmed his conviction, the Attorney General of the State of

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California and certain of his deputies, the County Clerk of San Bernardino County and several deputies, his own attorney, witnesses who testified at his trial, and to cap it, he brings in as defendants all of the members of the Jury which convicted him of the crime of escape for which he is now imprisoned by the State of California.

Plaintiff presented an affidavit under 28 U.S.C. § 1915(a) alleging that he was unable to pay the costs of suit or give security therefor. Upon that showing and without examination of the 'Complaint,' the undersigned made an Order allowing the filing of the Complaint without payment of the Clerk's filing fee, but did not authorize the service of process on the 44 defendants by the Marshal at public expense, or waive any other fees or costs. I directed the Clerk to send a copy of the Complaint to the Attorney General of the State of California, and the Attorney General, appearing specially, filed a Motion for summary judgment.

Since that time, I have examined the Complaint and have concluded that the action is frivolous, vindictive, and malicious, and that Plaintiff should not be permitted to proceed further at public expense in forma pauperis, but that the action should be dismissed sua sponte.

Federal courts have an extremely limited area in which they may act pertaining to the treatment of prisoners confined in State Institutions. (United States ex rel. Atterbury v. Ragen (7th-1956) 237 F.2d 953, Cert. den. 353 U.S. 964, 77 S.Ct. 1049, 1 L.Ed.2d 914).

In a civil action for damages under the Civil Rights Act against public officials, highly specific facts are required to be alleged. (Agnew v. City of Compton (9th-1956) 239 F.2d 226, 231, Cert. den. 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910). A complaint does not state a cause of action under the Civil Rights Act, absent allegations that the conduct alleged was in pursuance of a systematic policy of discrimination against a class or group of persons. (Truitt v. State of Illinois (7th-1960) 278 F.2d 819, Cert. den.364 U.S. 866, 81 S.Ct. 109, 5 L.Ed.2d 88; Agnew v. City of Compton, supra). There are no such allegations here.

In Weller v. Dickson (9th-1963) 314 F.2d 598, page 600, Cert. den. 375 U.S. 845, 84 S.Ct. 97, 11 L.Ed.2d 72, the Court said:

'In connection with forma pauperis proceedings these generalities need no citation, namely, the benefits are entirely statutory, they are granted as a privilege and not as a matter of right. The refusal to grant is not a violation of due process. The granting or refusing of such procedure is within the discretion of the District Court. The denial is in the nature of a final order and thus appeal lies.'

In the exercise of the discretion granted by 28 U.S.C. § 1915(a), the District Court is authorized to deny leave to proceed in forma pauperis at the outset if it appears from the face of the complaint that the action is frivolous and should be dismissed sua sponte before service of process, if it were filed by one tendering the required fees. (John v. Gibson (9th-1959) 270 F.2d 36; Reece v. State of Washington (9th-1962) 310 F.2d 139; Wright v. Rhay (9th-1962) 310 F.2d 687, Cert. den. 373 U.S. 918, 83 S.Ct. 1309, 10 L.Ed.2d 418; Weller v. Dickson (9th-1963) 314 F.2d 598, Cert. den. 373 U.S. 845, 84 S.Ct. 97, 11 L.Ed.2d 72). Stiltner v. Rhay (9th-1963) 322 F.2d 314 suggests the better practice is to do as has been done here, viz.: permit the filing with the Clerk but withhold service of process until the right to proceed is examined, as approved by the Tenth Circuit in Oughton v. United States (1962) 310 F.2d 803, Cert. den. 373 U.S. 937, 83 S.Ct. 1542, 10 L.Ed.2d 693.

The Court is to be '* * * governed by situation and circumstances affecting exercise of discretion.' (Weller v. Dickson, supra, 314 F.2d p. 600).

In exercising that discretion, the courts cannot overlook the fact that as

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to persons in prison, the Statute of Limitations is tolled (Calif.Code Civ.Proc. § 352) and the suit can be brought in a 'more favorable atmosphere * * * after the potential plaintiff has again become a member of free society.' (Weller v. Dickson, supra).

Nor can courts brush aside the fact that, as to both prisoners and those not confined, in a forma pauperis proceeding, there will be no recourse to defendants even for costs, against plaintiffs, for ill-conceived and malicious and unfounded suits, to say nothing of the trouble, harassment, time, and expense such as attorney fees incurred or expended in defending a suit, which cannot be covered by an assessment for costs.

While this Court is ever alert to protect those accused of crime, it is time that the courts recognize that society and its members have some rights, as well as convicted criminals. Especially where, as here, a convicted felon, 2 on his own naked oath, would put 44 persons, each of whom has taken a solemn public oath to do his particular duty and to uphold the law, to the trouble and expense of defending the outrageous demands of this plaintiff. Day after day the courts are instructing juries that persons are presumed to obey the law. The presumption that each defendant named herein obeyed the law in conformity with his oath cannot be disregarded in the exercise of discretion as to whether or not this plaintiff can proceed at public expense.

Day after day the courts are instructing juries that a witness may be impeached by showing that he has been convicted of a felony. There is no sound reason why this salutary rule of law should not induce just a little skepticism concerning the good faith of this plaintiff, especially in view of the fact that 12 jurors disbelieved his testimony at his trial where one of his defenses was that he was not the man who escaped, and in view of his exorbitant...

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