Prince v. Klune
| Decision Date | 05 March 1945 |
| Docket Number | No. 8814.,8814. |
| Citation | 148 F.2d 18,80 US App. DC 31 |
| Parties | PRINCE v. KLUNE. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Thomas X. Dunn, of Washington, D. C., (appointed by this Court) for appellant.
Mr. Charles B. Murray, Assistant United States Attorney, of Washington, D. C., with whom Mr. Edward M. Curran, United States Attorney, of Washington, D. C., was on the brief, for appellee.
Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.
This appeal is from the District Court's refusal to permit appellant to file, without prepayment of costs, a petition for a writ of mandamus to compel appellee, the resident physician at the District of Columbia Reformatory at Lorton, Virginia, to give appellant surgical treatment. The petition alleged that appellant is confined in the reformatory; that he is in need of an operation; that appellee admits this; and that appellee will not perform the operation. The petition was sworn to and was accompanied by an affidavit of poverty. The District Court's ruling was: "Leave to file without prepayment of costs denied." The court afterwards granted leave to appeal to this court without prepayment of costs.
Section 832 of the Judicial Code provides that "Any citizen of the United States entitled to commence any suit or action, civil or criminal, in any court of the United States, may, upon the order of the court, commence and prosecute or defend to conclusion any suit or action, or a writ of error or an appeal to the circuit court of appeals, or to the Supreme Court in such suit or action, including all appellate proceedings, unless the trial court shall certify in writing that in the opinion of the court such appeal or writ of error is not taken in good faith, without being required to prepay fees or costs * * *"; upon filing an affidavit of poverty. 28 U.S.C.A. § 832.
This statutory privilege of filing a suit without prepaying costs is conferred only upon a citizen who is "entitled to commence" a suit. In a sense it may be said that one is always entitled to commence any suit, even a suit which asserts no claim upon which relief can be granted. But the quoted phrase in its context cannot reasonably be interpreted so broadly. The statute is not intended to confer the privilege of commencing, without prepaying costs, a suit which is plainly without merit. Cf. Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 49, 35 S.Ct. 236, 59 L.Ed. 457...
To continue reading
Request your trial
-
Weller v. Dickson
...v. Swope, 9 Cir., 1949, 176 F.2d 311). Again, other circuits agree. (Taylor v. Steele, 8 Cir., 1951, 191 F.2d 852; Prince v. Klune, 1945, 80 U.S.App.D.C. 31, 148 F.2d 18; Laughlin v. Cummings, 1939, 70 App.D.C. 192, 105 F.2d 71; Platek v. Aderhold, 5 Cir., 1934, 73 F.2d 173; Dayton v. Hunte......
-
Nichols v. McGee
...v. Hunter, 10 Cir., 191 F.2d 516; Willis v. Utecht, 8 Cir., 185 F.2d 210; Johnson v. Hunter, 10 Cir., 144 F.2d 565; Prince v. Klune, 80 U.S.App.D.C. 31, 148 F.2d 18; and Dorsey v. Gill, 80 U.S.App. D.C. 9, 148 F.2d 857), and a duty is imposed on this Court to examine any motion seeking leav......
-
Mattheis v. Hoyt
...perfectly clear that his proposed action is wholly without merit and would be futile or is frivolous or malicious. See Prince v. Klune, 80 U.S.App.D.C. 31, 148 F.2d 18; Johnson v. Hunter, 10 Cir., 144 F.2d 565; Gilmore v. United States, 8 Cir., 131 F. 2d 873; and other authorities cited and......
-
Higgins v. Steele
...have been entertained. Leave to proceed in forma pauperis under 28 U.S.C.A. § 1915 is a privilege, not a right. Prince v. Klune, 80 U.S. App.D.C. 31, 148 F.2d 18; Dorsey v. Gill, 80 U.S. App.D.C. 9, 148 F.2d 857, 877. An application for leave to proceed in forma pauperis is addressed to the......