Miller v. Pleasure, 14

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation296 F.2d 283
Docket NumberDocket 26931.,No. 14,14
PartiesSt. Clair E. MILLER, Plaintiff-Appellant, v. Hyman PLEASURE, M.D., as Superintendent of Middletown State Hospital, Middletown, New York, Defendant-Appellee.
Decision Date21 November 1961

St. Clair E. Miller, plaintiff-appellant, pro se.

Louis J. Lefkowitz, Atty. Gen. of New York, Irving Galt, Asst. Sol. Gen., and John J. O'Grady, Asst. Atty. Gen., New York City, for defendant-appellee.

Before CLARK, HINCKS, and FRIENDLY, Circuit Judges.

PER CURIAM.

This is an appeal from Judge Sugarman's order which allowed appellant to prosecute his pending action for false imprisonment in forma pauperis, but declined to assign counsel for his assistance. Appellant attempts to name the United States of America as appellee; while this has no bearing on the ultimate outcome of the appeal, we see no reason for this, as the government has never been cited as a party and has no apparent interest in the case. Of course it has no liability for counsel assigned pursuant to the statute, 28 U.S.C. § 1915 (d). A further preliminary question concerns the appealability of the order. Defendant contends that it is not a "final decision" in the action below within the meaning of 28 U.S.C. § 1291, granting jurisdiction on appeal. Roberts v. U. S. Dist. Court for the Northern Dist. of Cal., 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed. 1326, holds an order denying leave to proceed in forma pauperis to be appealable; but the defendant points to a distinction that, while the present order leaves the action pending for personal or legal aid prosecution by the plaintiff, the other denial would prevent the party from even filing his papers in court. There is a distinction and the question appears close; but the Supreme Court does not suggest any limitation and the practical effect in each case seems fairly similar. We resolve the doubt in appellant's favor by holding this appealable as a collateral order within the meaning of Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206, 19 A.L.R.2d 630, and Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L. Ed. 1528.

For some years and in various proceedings the appellant has attempted to get support and assistance for his claim for damages for having been committed to a state mental institution while allegedly sane. In Miller v. Director, Middletown State Hospital, Middletown, N. Y., D.C.S.D.N.Y., 146 F.Supp. 674, Judge Kaufman held the present defendant immune from suit; and we affirmed, 2 Cir., 243 F.2d 527, while denying his request for counsel. Since then at least four district judges have denied his various applications, one of them after receiving a report from a member of the bar whom he had...

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  • State of Louisiana ex rel. Purkey v. Ciolino
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • 17 avril 1975
    ...malicious. Allison v. Wilson, 277 F.Supp. 271 (N.D.Cal.1967). See, Muhammad v. McGinnis, 362 F.2d 587 (2nd Cir. 1966); Miller v. Pleasure, 296 F.2d 283 (2nd Cir. 1961). The reason for that procedure is to insure that the appointed counsel does not render service, for which there is no compe......
  • Dreyer v. Jalet
    • United States
    • U.S. District Court — Southern District of Texas
    • 18 septembre 1972
    ...1965); Wright v. Rhay, 310 F.2d 687 (9th Cir. 1962), cert. denied, 373 U.S. 918, 83 S.Ct. 1309, 10 L.Ed.2d 418 (1963); Miller v. Miller, 296 F.2d 283 (2d Cir. 1961), cert. denied, 370 U.S. 963, 82 S.Ct. 1591, 8 L.Ed.2d 830 (1962). However, there is a lack of commensurate statutory authority......
  • Bradshaw v. Zoological Soc. of San Diego
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 7 décembre 1981
    ...Circuit has held that an order denying appointment of counsel under 28 U.S.C. § 1915(d) is appealable under Cohen. Miller v. Pleasure, 296 F.2d 283 (2d Cir. 1961) (per curiam), cert. denied, 370 U.S. 964, 82 S.Ct. 1592, 8 L.Ed.2d 830 (1962). The Miller reasoning is equally applicable to Tit......
  • Rhodes v. Houston
    • United States
    • U.S. District Court — District of Nebraska
    • 8 septembre 1966
    ...a civil action for the recovery of damages is appropriate where the likelihood of success in such action is highly dubious, Miller v. Miller (2 Cir.) 296 F.2d 283 (C.D. 370 U.S. 963, 82 S.Ct. 1591, 8 L.Ed.2d 830); Miller v. Pleasure (2 Cir.) 296 F.2d 283, Miller v. Director etc. (2 Cir.) 24......
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