United States v. Madden

Citation352 F.2d 792
Decision Date03 November 1965
Docket NumberNo. 19971.,19971.
PartiesUNITED STATES of America ex rel. Robert Newton GARDNER, Jr., Appellant, v. William T. MADDEN, Captain, Edward J. Sanchez, Sergeant, Joe Aguirre, Detective, Dalton Newland, Inspector, William H. Parker, Los Angeles Chief of Police, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Robert Newton Gardner, Jr., in pro. per.

Roger Arnebergh, City Atty., Los Angeles, Cal., for appellees.

Before BARNES, HAMLEY and JERTBERG, Circuit Judges.

BARNES, Circuit Judge:

This is another of the never-ending flow of cases initiated by State-incarcerated prisoners alleging an abridgement of their federal civil rights. Sued are four city police and one state narcotics inspector who allegedly entered into a conspiracy to deprive appellant of his rights by means of (1) an illegal arrest without warrant on December 10, 1959, for robbery; (2) a search of appellant's house after such arrest; (3) prolonged interrogation and refusal to allow appellant to call an attorney; (4) rearrest and booking for possession of narcotics; (5) physical abuse; and (6) perjury at preliminary examination by defendant Sanchez — some twenty miscellaneous acts, allegedly violating appellant's civil rights. (42 U.S.C. § 1983.)

The order dismissing the complaint in the district court was on the court's own motion. It was done apparently on the hearing of the plaintiff's motion for appointment of an attorney, and for permission to proceed in forma pauperis. It was not based on appellant's failure to state a claim. In fact, the order of dismissal specifically recognizes that the claim stated could probably be litigated at a later date.

The court gave two reasons for the dismissal. One — that the court had no authority to appoint counsel to represent the appellant in a civil action; and second — that there are no funds available to pay witness fees or transport appellant from his place of incarceration to the district court.

Without passing on the second reason, we cannot agree with the first.1 28 U.S.C. § 1915, by its terms, authorizes the appointment of counsel in civil actions.2

It is true that the appointment of counsel in a civil case is, as is the privilege of proceeding in forma pauperis, a matter within the discretion of the district court. It is a privilege and not a right. Wright v. Rhay, 310 F.2d 687 (9th Cir. 1962), cert. denied 373 U.S. 918, 83 S.Ct. 1309, 10 L.Ed.2d 418 (1963).

Here the plaintiff sought to appeal in forma pauperis from the district court's dismissal. The district court found the appeal was taken in good faith and was not frivolous. It is only if the issues raised are so frivolous that an appeal would be dismissed in the case of a non-indigent litigant, that a motion to appeal in forma pauperis should be denied. Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958); John v. Gibson, 270 F.2d 36 (9th Cir. 1959).

The court of appeals may, in the exercise of its plenary power, dismiss a civil appeal as frivolous. Jimenez v. Barber, 252 F.2d 550 (9th Cir. 1958). But because the district court granted permission to appeal in forma pauperis, we should give that order "great weight." We do, and therefore will...

To continue reading

Request your trial
254 cases
  • Roberts v. Pepersack
    • United States
    • U.S. District Court — District of Maryland
    • 29 de junho de 1966
    ...of this nature is a privilege and not a right, and thus involves the exercise of the court's discretion. United States ex rel. Gardner v. Madden, 352 F.2d 792 (9th Cir. 1965); Hatfield v. Bailleaux, supra; Temple v. Pergament, 235 F.Supp. 242 (D.N.J. 1964); Sewell v. Kennedy, 222 F.Supp. 15......
  • Dreyer v. Jalet
    • United States
    • U.S. District Court — Southern District of Texas
    • 18 de setembro de 1972
    ...pursuant to 28 U. S.C. § 1915. Peterson v. Nadler, supra; Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971); United States ex rel. Gardner v. Madden, 352 F.2d 792 (9th Cir. 1965); Wright v. Rhay, 310 F.2d 687 (9th Cir. 1962), cert. denied, 373 U.S. 918, 83 S.Ct. 1309, 10 L.Ed.2d 418 (1963); M......
  • Rhodes v. Houston
    • United States
    • U.S. District Court — District of Nebraska
    • 8 de setembro de 1966
    ...only in the presence of unusual circumstances, should counsel be appointed for the plaintiff in such cases. United States, ex rel. Gardner v. Madden (9 Cir.) 352 F.2d 792; Weller v. Dickson (9 Cir.) 314 F.2d 598; Jefferson v. Heinze (D.C.Cal.) 201 F.Supp. 606; Wilson v. Ellis (D.C.Tex.) 193......
  • U.S. v. 30.64 Acres of Land, More or Less, Situated in Klickitat County, State of Wash.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 28 de julho de 1986
    ...at the discretion of the trial court and can only be overturned for abuse of that discretion. See United States ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir.1965). Appellant here argues, however, that the district court based its denial on its erroneous belief that it lacked the st......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT