Perkins v. Cingliano

• Decision Date: 13 November 1961
• Citation: 296 F.2d 567
• Parties: Melvin PERKINS v. Samuel CINGLIANO, Sr.
• Court: U.S. Court of Appeals — Fourth Circuit

296 F.2d 567 (1961)

Melvin PERKINS v. Samuel CINGLIANO, Sr.

United States Court of Appeals Fourth Circuit.

November 13, 1961.

Melvin Perkins, pro se.

Morris Levine, Baltimore, Md., for appellee Samuel Cingliano, Sr.

Before SOBELOFF, Chief Judge, and SOPER and BELL, Circuit Judges.

SOBELOFF, Chief Judge.

Having been permitted by order of Judge Chesnut to sue in forma pauperis, Melvin Perkins filed his action in the District Court for the District of Maryland, claiming damages from the defendant for malicious prosecution and false arrest. Jurisdiction was asserted on the ground of diversity of citizenship, Perkins claiming that he was a citizen of Pennsylvania and the defendant a citizen of Maryland. The allegation as to citizenship was contested by the defendant, and at Perkins' request a jury was empanelled to determine the issue. The jury decided adversely to the plaintiff, saying explicitly in answer to the interrogatory submitted to it that the plaintiff was not a bona fide citizen of Pennsylvania as claimed.

The court thereupon dismissed the complaint without prejudice to new proceedings in a state court, and costs were taxed against the unsuccessful plaintiff in accordance with the practice prevailing in that court, and pursuant to the provisions of the forma pauperis statute, 28 U.S.C.A. § 1915, subsection (e) of which reads as follows:

"Judgment may be rendered for costs at the conclusion of the suit or action as in other cases and 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."

Perkins then moved to "set aside costs," arguing that these could not be taxed against him, since he had been allowed to "sue as a pauper." Judge Chesnut denied the motion, pointing out that under the above-cited section of the law, one who has been permitted to sue as a pauper may still have judgment for costs rendered against him as in other cases. The opinion cited two recent instances in the same court where costs were adjudged against the unsuccessful litigants after they had been allowed to sue in forma pauperis. Lowicki v. Skibs A. S. Herstein, 182 F. Supp. 585 (D.Md.1960), and Ortiz v. Greyhound Corporation, 192 F. Supp. 903 (D.Md.1959). The rule is the same elsewhere. See 20 C.J.S. Costs § 146 p. 385, and Davis v. Adams, 109 F. 271 (N.D.Cal.1901), interpreting the predecessor statute.

From this judgment of the District Court Perkins now wishes to prosecute an appeal to this court, and insists that he is entitled to do so in forma pauperis by reason of the District Court's order made at the commencement of the action. Our Clerk requests the instruction of the court.

Judge Chesnut's order allowing suit to be filed in forma pauperis was signed at the initial stage of the case, before its merits or the merit of any future appeal could possibly be appraised. His order did not grant leave to prosecute an appeal in forma pauperis. If there were such an order by the District Court, we would not require the appellant to obtain a further order from this court. We would interpret the District Court's order as waiving prepayment of costs incident to the appeal, both those payable to the Clerk of the District Court for making up the record and those payable to the Clerk of the Court of Appeals as filing fees.

This case is significantly different from McGann v. United States, 362 U.S. 309, 80...