Caviness v. Somers

• Decision Date: 18 June 1956
• Docket Number: No. 7192.,7192.
• Citation: Caviness v. Somers, 235 F.2d 455 (4th Cir. 1956)
• Parties: James I. CAVINESS v. William B. SOMERS, United States Marshal for Middle District of North Carolina, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

235 F.2d 455 (1956)

James I. CAVINESS v.William B. SOMERS, United StatesMarshal for Middle District of North Carolina, Appellee.

No. 7192.

United States Court of Appeals Fourth Circuit.

Argued June 8, 1956.

Decided June 18, 1956.

James I. Coviness, pro se, on brief.

H. Vernon Hart, Asst. U. S. Atty., Greensboro, N. C. (Edwin M. Stanley, U. S. Atty., Greensboro, N. C., on brief), for appellee.

Before PARKER, Chief Judge, SOPER, Circuit Judge, and MOORE, District Judge.

PER CURIAM.

This is an appeal from an order denying a petition by a prisoner to be allowed to prosecute in forma pauperis an action for damages against a United States Marshal for alleged mistreatment while confined in a county jail.The petition to be allowed to proceed in forma pauperis was denied on the ground that there was "no merit whatever in petitioner's alleged cause of action" and that "the institution of the suit would be frivolous and utterly without merit".The District Judge filed an opinion setting forth the facts which fully supported his action in denying the petition.

Assuming without deciding that appeal lies from the denial of the petition, the matter was one committed by the statute to the discretion of the District Judge and there is no basis in the record before us for holding the discretion abused.SeeTaylor v. Steele, 8 Cir., 191 F.2d 852, andHiggins v. Steele, 8 Cir., 195 F.2d 366.In Fletcher v. Young, 4 Cir., 222 F.2d 222, 224, we had before us an appeal from an order dismissing as without merit and frivolous an action instituted in forma pauperis on leave theretofore granted to so institute it.In sustaining the order of dismissal on motion based on the ground that the action was frivolous, we said:

"Power to dismiss an action on motion under 28 U.S.C. § 1915(d) on the ground that it is frivolous is not limited or impaired by the provisions of Rule 12(b) of the Rules of Civil Procedure,28

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