469 F.2d 471 (10th Cir. 1972), 71-1666, Duhart v. Carlson

Docket Nº:71-1666.
Citation:469 F.2d 471
Party Name:Paul X. DUHART et al., Plaintiffs-Appellants, v. Norman A. CARLSON, Director of Prisons, John N. Mitchell, as Attorney General of the United States, Defendants-Appellees.
Case Date:September 05, 1972
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 471

469 F.2d 471 (10th Cir. 1972)

Paul X. DUHART et al., Plaintiffs-Appellants,

v.

Norman A. CARLSON, Director of Prisons, John N. Mitchell, as Attorney General of the United States, Defendants-Appellees.

No. 71-1666.

United States Court of Appeals, Tenth Circuit.

Sept. 5, 1972

Rehearing Denied Oct. 11, 1972.

Page 472

Bruce D. Pringle, Denver, Colorado, for plaintiffs-appellants.

John J. Immel, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., and Richard L. Meyer, Asst. U. S. Atty., on the brief), for defendants-appellees.

Before PHILLIPS, HILL and BARRETT, Circuit Judges.

ORIE L. PHILLIPS, Circuit Judge.

The above-named appellants brought this action in the United States District Court for the District of Columbia against the above-named appellees as a class action.

The appellants filed an application under 28 U.S.C.A. § 1915 for authorization to prosecute the action without prepayment of fees and costs. In an affidavit supporting their application, the appellants averred that they were American citizens; that because of poverty they were unable to pay the costs of such action; and that they believed that they were lawfully entitled to the redress which they sought in the action.

The District Court of the District of Columbia granted the application. Thereafter, on the motion of the United States Attorney for the District of Columbia, the court transferred the case to the United States District Court for the District of Kansas.

In their complaint, the appellants alleged:

That the court had jurisdiction under 28 U.S.C. §§ 1331; 1391(e); 1343(1), (2), (4); 1651(a); 2284(2), (3); 2201; 2202; and Title VI of the Civil Rights Act of 1964;

That they were prisoners incarcerated in the United States Penitentiary at Leavenworth, Kansas; that they were black prisoners; that they had been unconstitutionally discriminated against by the prison officials of such penitentiary and by members of the staff of the penitentiary, because of their race and religion (Islam); and that they had been denied the rights of peaceable assembly and of freedom of speech.

Appellants further alleged:

That the appellees, as Director of the Bureau of Prisons of the United States and as Attorney General of the United States, had conspired with Robert I. Moseley, warden of such penitentiary, and the members of his staff to deny the "blacks" their rights of "freedom of expression and black programs and right of Muslims to practice their religion."

The appellants sought relief by declaratory judgment, mandamus, and injunction.

Section 1915(a), (d), and (e), in part here material, reads:

"§ 1915. Proceedings in forma pauperis

"(a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that he is entitled to redress.

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Page 473

"(d) The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

"(e) Judgment may be rendered for costs at the conclusion of the suit or action as in other cases, but the United States shall not be liable for any of the costs thus incurred. If the United States has paid the cost of a stenographic transcript or printed record for the prevailing party, the same shall be taxed in favor of the United States. * * *"

It is preferable procedure for a federal district court to authorize the commencement and prosecution of an action without the prepayment of costs, if the requirements of § 1915(a) are satisfied on the face of the papers submitted, and if the court thereafter discovers that the allegation of poverty is untrue, or if it is satisfied that the action is frivolous or malicious, then to dismiss the action. 1 Under such a procedure, a complete record can be made in an orderly fashion, for the benefit of both the district court and the court of appeals if an appeal is taken. That procedure was followed in the instant case.

In their answer to the complaint, appellees admitted that the appellants were "presently incarcerated at the United States Penitentiary, Leavenworth, Kansas." They denied each of the other allegations of the complaint.

Coupled with the answer, appellees filed a motion to dismiss the action, on the ground that it was frivolous and malicious, and set up that appellants had brought many complaints in the United States District Court for the District of Kansas in which they made the same allegations and asked for similar relief, and gave the titles and numbers of seven of such cases.

The court dismissed the action, on the ground that it was frivolous and malicious. In a memorandum filed with the order of dismissal, the court said:

"* * * All of the plaintiffs are inmates of the United States Penitentiary, Leavenworth, Kansas. Duhart and Long are parties in Case No. L-1244, pending in this court, which has been tried to the court and is now under advisement. An action brought by Andrews, L-1322, was dismissed by this court and is now on appeal to the United States Court of Appeals, Tenth Circuit. McCray is the plaintiff or petitioner in several cases which have been dismissed as frivolous. In each of the cases mentioned the plaintiff or petitioner has claimed religious and racial discrimination by officers and employees of the Bureau of Prisons. In this complaint, the plaintiffs seek to relitigate issues already litigated in other cases brought by them. I am satisfied that the action is frivolous and malicious."

A court may take judicial notice of its own records. 2 And it has authority to consult its own records for the purpose of determining whether an action being prosecuted in forma pauperis...

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