Richey v. Wilkins

• Decision Date: 21 July 1964
• Docket Number: No. 436,Docket 28155.,436
• Citation: 335 F.2d 1
• Parties: James RICHEY, Appellant, v. Walter H. WILKINS, Warden, Attica State Prison, and Paul D. McGinnis, Commissioner of Correction, Appellees.
• Court: U.S. Court of Appeals — Second Circuit

335 F.2d 1 (1964)

James RICHEY, Appellant, v. Walter H. WILKINS, Warden, Attica State Prison, and Paul D. McGinnis, Commissioner of Correction, Appellees.

No. 436, Docket 28155.

United States Court of Appeals Second Circuit.

Argued April 22, 1964.

Decided July 21, 1964.

Edward J. Daus, of Corcoran, Kostelanetz & Gladstone, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen. of New York (Philip Kahaner, Ronald J. Offenkrantz, Asst. Atty. Gen., of counsel), for appellees.

Before LUMBARD, Chief Judge, and WATERMAN and MARSHALL, Circuit Judges.

WATERMAN, Circuit Judge:

This appeal involves a suit under the federal Civil Rights Act, 42 U.S.C. § 1983, 28 U.S.C. § 1343, sought to be brought in forma pauperis by a prisoner of the State of New York against prison officials, charging such officials with having subjected the plaintiff to religious persecution and thereby having deprived him of rights secured to him under the First and Fourteenth Amendments to the United States Constitution. The appeal is taken from a denial below of plaintiff's application for leave to proceed with his suit in forma pauperis.

On November 3, 1961, appellant James Richey filed with the United States District Court for the Western District of New York an application for leave to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915, in a civil rights suit under 42 U.S.C. § 1983. In his complaint, which was accompanied by the affidavit of financial inability required by 28 U.S. C. § 1915, appellant, who was at the time a prisoner in Attica State Prison in the Western District of New York, alleged that he, an adherent to the Muslim religion, was being deprived by prison officials of his right freely to worship. More specifically, appellant charged in his complaint that inmates of his faith at Attica, unlike inmates of other faiths there, were being denied the right to hold and attend group services, were being denied access to a minister of their faith, were restricted in their purchase of literature about their religion to literature on an approved list arbitrarily drawn up by prison officials, and were being subjected to various punishments and persecutions solely because of their religious beliefs. In an order dated November 28, 1961, the district judge, though conceding that the complaint stated a valid cause of action, denied appellant's motion for leave to proceed in forma pauperis, on the sole ground that similar actions by two other inmates of Attica were then pending in the court, and appellant's rights could be adequately protected by adjudication in those suits.

Following this adverse decision, appellant took no further steps to press his cause until June 27, 1962, when he filed with the district court an "Application for Admission to be Heard on Originl sic Petition of Complaint," accompanied by supporting papers identical to those which appellant had previously submitted in his original application for leave to proceed in forma pauperis. Appellant's renewed interest in his case may well have been spurred by the fact that our Court, one month earlier, had handed down an order dealing with lower court denials of other Attica Muslim inmates' in forma pauperis petitions in civil rights suits, in which it was held that the pendency of similar actions for like relief was an insufficient reason for denial of the petitions. Walker v. McGinnis, 2 Cir., May 16, 1962, Docket No. 27572. On July 23, 1962, the district judge denied this second of appellant's applications on the ground that appellant's intervening transfer to Clinton State Prison at Dannemora, in the Northern District of New York, had rendered the question of discriminatory practices at Attica moot as to him.

On or about August 14, 1962, appellant, proceeding pro se as he had in the past, filed with our court a notice of appeal from the July 23, 1962 order, a motion for leave to appeal in forma pauperis, and a relevant affidavit of service. Appellant filed no notice of appeal in the district court, as required by Rule 73(a) of the Federal Rules of Civil Procedure and by 28 U.S.C. § 2107. On March 27, 1963, on motion of appellant, we ordered that a certificate of probable cause issue, that appellant be permitted to pursue his appeal in forma pauperis, and that counsel be assigned appellant for the appeal. We also subsequently granted assigned counsel's request to appeal on the original record, but did so with the reservation that this ruling would not prevent the making of further motions by appellees.

Before we may undertake a consideration of the merits of appellant's claim that the court below erred in denying him leave to proceed in forma pauperis, we must deal with several procedural issues which appellees have raised by a motion to dismiss the appeal. In this connection, candor compels us to note at the outset that, mindful as we are of the advantages to the efficient administration of justice which may be secured through requiring dutiful adherence to established procedural rules by those who would appeal to this Court, we believe that where, as here, the appellant is an apparently indigent lay prison inmate who had attempted to proceed without the aid of counsel, to require that an appeal be perfected with too great a degree of technical precision is to risk the working of serious injustice for no sound reason.

Appellees' first argument in support of their motion to dismiss is that, as appellant had taken no steps of any kind to appeal from the November 28, 1961 order of the court below, appellant can only be attempting to appeal from the order of July 23, 1962, and as this order was no more than a denial of a motion for reargument, no appeal can lie from it. We cannot accept this characterization by appellees of the second proceeding before the district judge and the order which issued therefrom. Appellant in that proceeding filed supporting papers with the district court identical to those which had accompanied his initial petition for leave to proceed in forma pauperis, and the court, far from treating the second application as a simple motion for reargument, examined the merits of appellant's renewed request to proceed in forma pauperis and denied it on grounds completely different from those which he had cited in his earlier order. Moreover, when the district judge also denied in his second order appellant's additional request for leave to appeal in forma pauperis, he indicated his belief that an appeal would lie from his ruling by stating that this portion of the order was not to bar appellant from petitioning the Court of Appeals for leave to appeal his case in forma pauperis. Of course, nothing prevented appellant from filing with the district court a second application for relief identical to that which he had before requested, namely, leave to press a civil rights suit in forma pauperis, and we think it wiser under the circumstances to treat appellant's second application, as did the court below, as just that. That being the case, the order which the court issued on July 23, 1962 was not a denial of a motion for a rehearing of the decision of November 28, 1961; it was just as appealable as the order which denied appellant's first request for leave to proceed in the district court in forma pauperis. Cf. Pfister v. Northern Illinois Finance Corp., 317 U.S. 144, 63 S.Ct. 133, 87 L.Ed. 146 (1942); Bowman v. Lopereno, 311 U.S. 262, 61 S.Ct. 201, 85 L.Ed. 177 (1940).

Appellees cite as a second ground for dismissal of the appeal the failure by appellant to comply with the provisions of Rule 73(a) of the Federal Rules of Civil Procedure and with 28 U.S.C. § 2107. Rule 73(a), which is designed to implement 28 U.S.C. § 2107, requires an unsuccessful district court litigant who desires to appeal to file, within a given period of time which in this case is 30 days, a notice of appeal in the district court from which the appeal is to be taken. Though appellant did file a notice of appeal within the 30 day period, he mistakenly filed it with the Court of Appeals rather than with the district court, and thereby failed to fulfill the exact requirements of Rule 73(a). In our judgment, however, to deny this appellant an opportunity to appeal from the decision below because of his failure to comply with one aspect of a scheme of procedural requirements with which he was unfamiliar, a failure which did not prejudice appellees and which nothing in the record suggests resulted from anything other than a good faith error on his part in attempting to comply, would be to subject appellant to very serious hardship to no useful end.

In Reconstruction Finance Corporation v. Prudence Securities Advisory Group, 311 U.S. 579, 61 S.Ct. 331, 85 L. Ed. 364 (1941), petitioners, in attempting to appeal to this Court from certain compensation orders entered in the district court, had filed notices of appeal in the district court in reliance upon a then apparently controlling decision in this Circuit. Before final decision on the appeals, however, the Supreme Court of the United States ruled that in such cases applications for leave to appeal had to be filed with the relevant Court of Appeals, and petitioners' appeals were accordingly dismissed by this...