Richardson v. Hatch

• Decision Date: 01 September 1955
• Docket Number: Civ. A. No. 2780.
• Parties: James RICHARDSON, Jr., Plaintiff, v. Blaine W. HATCH and Howard W. Cavanagh, Defendants.
• Court: U.S. District Court — Western District of Michigan

134 F. Supp. 110

James RICHARDSON, Jr., Plaintiff, v. Blaine W. HATCH and Howard W. Cavanagh, Defendants.

Civ. A. No. 2780.

United States District Court W. D. Michigan, S. D.

September 1, 1955.

James Richardson, Jr., in pro. per.

STARR, Chief Judge.

The plaintiff James Richardson, Jr., an inmate of the State prison of southern Michigan serving a life sentence for first-degree murder, filed application for leave to commence and prosecute in forma pauperis a civil action for money damages against Blaine W. Hatch, judge of the thirty-seventh judicial circuit of Michigan, and Howard W. Cavanagh, an attorney employed by the plaintiff to represent him in connection with his motion for a new trial. In his proposed complaint accompanying his application the plaintiff alleges violation of his constitutional rights and asks for damages in the amount of one hundred thousand dollars. His application for leave to proceed in forma pauperis is filed in pursuance of 28 U.S.C.A. § 1915, which provides in part:

"(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 citizen 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. * * *

"(d) The court * * * may dismiss the case * * * if satisfied that the action is frivolous or malicious."

The plaintiff's affidavit stating that he is unable to prepay fees and costs or give security therefor is sufficient under the above statute. Therefore, the only question presented is whether his application for leave to file complaint and proceed in forma pauperis in his civil action for damages should be granted.

From the plaintiff's proposed complaint and exhibits attached thereto it appears that in December, 1948, the plaintiff, while represented by W. Reed Orr, a competent attorney appointed by the circuit court, pleaded guilty to the charge of murdering his common-law wife, Gracie Lee Miller, and that after due investigation to determine the degree of the crime, Comp.Laws Mich.1948, § 750.318, defendant Blaine W. Hatch as circuit judge determined it to be first-degree murder and sentenced plaintiff to life imprisonment. From the record of the circuit court proceedings set forth in exhibits attached to the plaintiff's proposed complaint it appears that plaintiff admitted having murdered Gracie Lee Miller, and that his only claim of error by defendant Judge Hatch is that he should have been sentenced for second-degree murder instead of first-degree murder.¹ However, from examination of his proposed complaint and exhibits attached, it clearly appears that the crime committed by plaintiff constituted first-degree murder and that the life sentence imposed by the circuit judge was correct, Comp.Laws Mich.1948, § 750.316. It further appears that in all proceedings in connection with his arrest, arraignment, conviction, and sentence, plaintiff was accorded due process of law and equal protection of the laws, and that his constitutional rights were not in any way invaded. It appears that the plaintiff employed Howard W. Cavanagh, a competent attorney of ability and long experience, to represent him in connection with his motion for a new trial, and his proposed complaint and exhibits make no showing of any facts which would justify his proposed action for damages against Cavanagh.²

It further appears that the plaintiff's motion for a new trial was denied and that the Supreme Court of Michigan denied his application for leave to appeal. From careful examination of his complaint and attached exhibits it is clear that plaintiff's proposed action against the defendants for money damages is wholly without merit and is frivolous and malicious.

Under the above-quoted provisions of the statute, 28 U.S.C.A. § 1915, a district court, in the exercise of judicial discretion, may authorize or refuse to authorize the commencement and prosecution of an action without prepayment of fees and costs or the giving of security therefor. The law is well established that a Federal court should not grant a plaintiff leave to file a complaint and proceed in forma pauperis where it is clear that his proposed action is wholly without merit and will be futile, or is frivolous or malicious. In Gilmore v. United States, 8 Cir., 131 F.2d 873, 874, the court said:

"A federal court will not grant leave to a poor person to proceed in forma pauperis, under § 832 now § 1915, Title 28, U.S.C.A., if it is clear that the proceeding which he proposes to conduct is without merit and will be futile. Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 45, 35 S.Ct. 236, 59 L.Ed. 457; Pothier v. Rodman, 261 U.S. 307, 309, 43 S.Ct. 374, 67 L.Ed. 670; De Groot v. United States, 9 Cir., 88 F. 2d 624; Phillips v. McCauley, 9 Cir., 92 F.2d 790, 791; Fisher v. Cushman, 9 Cir., 99 F.2d 918; Whittle v. St. Louis & S. F. R. Co., C.C., 8 Cir. 104 F. 286; De Hay v. Cline, D.C., 5 F.Supp. 630, 631; In re Schulte, D.C., 21 F.Supp. 1016, 1017, 1018."

In the case of Prince v. Klune, 80 U. S.App.D.C. 31, 148 F.2d 18, in considering an application for leave to proceed in forma pauperis the court said:

"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."

In Johnson v. Hunter, 10 Cir., 144 F. 2d 565, 566, in denying a petition for leave to proceed without payment of costs, the court said:

"Attached to the Petition for Leave to Appeal filed herein is a copy of the original Petition for Writ of Habeas Corpus and copies of the orders entered by the District Court. Both orders were based by the District Court solely upon the proposition that the Petition for Writ of Habeas Corpus fails to disclose that petitioner has a meritorious cause and that it presented no issue of fact upon which the petitioner is entitled to a hearing under the rule announced in Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302.

"A District Court is not required to permit a poor person to file a petition without payment of costs unless there is a showing of merit. Whittle v. St. Louis & San Francisco R. Co., C.C., 104 F. 286; Kinney v. Plymouth Rock Squab Co., 236 U. S. 43, 35 S.Ct.

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