(concurring).

I concur in the result reached in the opinion of my brother ROSS, but not entirely in the reasoning by which that result is attained. It is not easy to define the standard by which the discretion of a trial judge is to be guided in deciding whether or not to grant leave to proceed in forma pauperis under 28 U.S. C. § 1915. I think, however, that a distinction should be drawn between civil and criminal cases, although Judge ROSS’ opinion does not purport to do so. I also think that the district judge should have a broader discretion in civil actions brought by prisoners against *602 their jailers than in other civil actions. We know from sad experience with habeas corpus and 2255 cases that imprisoned felons are seldom, if ever, deterred by the penalties of perjury. They do not hesitate to allege whatever they think is required in order to get themselves even the temporary relief of a proceeding in court. The prospect of amercing their jailers in damages must be a most tempting one, even if it will not get them their freedom. The disruption of prison discipline that the maintenance of such suits, at government expense, can bring about, is not difficult to imagine. Particularly since Monroe v. Pape, 1961, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 , it has become apparent that the “jailhouse lawyers” think that they have a new bonanza in the Civil Rights Act.

The idea of suits by prisoners against their guardians is not new. But up to now, the federal courts have pretty uniformly killed them off. 1 Attempts have been made to use habeas corpus for this purpose. These have met the answer that habeas corpus is not a proper remedy, because it only tests the legality of detention. (Snow v. Roche, 9 Cir., 1944, 143 F.2d 718 ; Taylor v. United States, 9 Cir., 1950, 179 F.2d 640 ). Other circuits agree. (But see Coffin v. Reichard, 6 Cir., 1944, 143 F.2d 443 , 155 A.L.R. 143 ). Various civil actions have been tried, but the courts have uniformly held that the prison authorities have discretion as to the treatment of prisoners, not controllable or remediable by the courts in civil actions. We have repeatedly so held. (Stroud v. Swope, 9 Cir., 1951, 187 F.2d 850 ; Sanders v. Johnston, 9 Cir., 1947, 159 F.2d 74 ; Numer v. Miller, 9 Cir., 1948, 165 F.2d 986 ; Sanders 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 ; Day ton v. Hunter, 10 Cir., 1949, 176 F.2d 108 ; Sturm v. McGrath, 10 Cir., 1949, 177 F.2d 472 ). The foregoing are all actions by federal prisoners. (Cf. Fulwood v. Clemmer, 1961, 111 U.S.App. D.C. 184, 295 F.2d 171 ). There is also one case in which a suit by a state prisoner was dismissed. (Kelly v. Dowd, 7 Cir., 1944, 140 F.2d 81 ). One ground,, however, was that suit should have been-in the state court, a ground not available-in a civil rights case. Taylor v. Steele,, supra, and Prince v. Klune, supra, involve attempts to proceed in forma pauperis. The others do not.

Several of these cases contain strong language to the effect that it is bad policy to allow such suits. Perhaps the best policy statement is in Higgins v. Steele, 8 Cir., 1952, 195 F.2d 366, 369 , a habeas corpus case. “While it is important that no prisoner be denied justice because of his poverty, it is also important that the prison authorities, government counsel, and the courts be not harassed by patently repetitious, meritless, frivolous or malicious proceedings.”

The same circuit, in Taylor v. Steele, supra, said that section 1915 does not require a district court “to permit a federal prisoner to sue in forma pauperis those in whose custody he has been placed by the Attorney General for confinement and medical care.” ( 191 F.2d at 853 )

A comparable view was taken by the Seventh Circuit in Kelly v. Dowd, supra, where the court said: “The acts of prison officials, vested with a rather wide discretion in safekeeping and securing prisoners committed to their custody and charged with the right and duty to maintain discipline among the inmates, should be upheld if reasonably necessary to effectuate the purposes of imprisonment.” ( 140 F.2d at 83 )

In Platek v. Aderhold, supra, the Fifth Circuit took a comparable position: “The court has no power to interfere with the *603 conduct of the prison or its discipline, but only on habeas corpus to deliver from the prison those who are illegally detained there.” ( 73 F.2d at 175 )

The Tenth Circuit agrees. In Dayton v. Hunter, supra, 176 F.2d at 109 , it is stated: “A court of equity does not have power in a case of this kind to superintend through injunctive processes the conduct of a federal penitentiary or its discipline.”

We have used similar language in Taylor v. United States, supra, 179 F.2d at 643 : “It is not within the province of the court to supervise the treatment of prisoners in the penitentiary, but only to deliver from prison those who are illegally detained there.”

The foregoing views can be supplemented by those expressed in other civil actions, not involving prisoners. Fletcher v. Young, 4 Cir., 1955, 222 F.2d 222 , was an action to recover real property. The court said that there is a “public policy embodied in the statute, viz. that, while persons who are unable to pay costs or give security therefor should be allowed to prosecute or defend actions for the protection of their rights without being required to pay costs or give security, they should not be allowed under the cover of the statute to abuse the process of the court by prosecuting suits which are frivolous or malicious.” (Id. at 224)

O’Connell v. Mason, 1 Cir., 1904, 132 F. 245 , was an action against a judge for damages resulting from judicial action. Leave to proceed in forma pauperis was denied. The court said, referring to the 1892 statute: “It is quite clear that Congress, while intending to extend to poor and meritorious suitors the privilege of having their wrongs redressed without the ordinary burdens of litigation, at the same time intended to safeguard members of the public against an abuse of the privilege by evil-minded persons who might avail themselves of the shield of immunity from costs for the purpose of harassing those with whom they are not in accord, by subjecting them to vexations and frivolous legal proceedings.” (Id. at 247)

To similar effect is Boggan v. Provident Life Accident Ins. Co., 5 Cir., 1935, 79 F.2d 721 .

Similar views have been expressed in civil rights cases: United States ex rel. Morris v. Radio Station WENR, 7 Cir., 1953, 209 F.2d 105, 107 . See also, Caviness v. Somers, 4 Cir., 1956, 235 F.2d 455 and our own decision in John v. Gibson, 9 Cir., 1959, 270 F.2d 36 . (I do not agree with the dictum in that case to the effect that the rules are the same in civil and criminal cases.)

There are many cases that distinguish civil from criminal cases, some of them dealing with the appointment of counsel, and basing the distinction upon the fact that the Sixth Amendment applies only to criminal cases. See: habeas corpus: Anderson v. Heinze, 9 Cir., 1958, 258 F.2d 479 ; Dorsey v. Gill, 1945, 80 U.S.App. D.C. 9, 148 F.2d 857 ; § 2255: In re Dinerstein, 9 Cir., 1958, 258 F.2d 609 . Three cases make a distinction between civil and criminal eases, as to the right to proceed in forma pauperis on appeal. United States v. Murphy, 2 Cir., 1957, 245 F.2d 751 (habeas corpus); Hill v. Settle, 8 Cir., 1957, 244 F.2d 311 (habeas corpus); Gershon v. United States, 8 Cir., 1957, 243 F.2d 527 (§ 2255).

Proceedings in forma pauperis are not new. They go back at least as far as the Statute of 11 Henry VII, Ch. 12. (See Brinkley v. Louisville & N. R. Co., C.C. W.D.Tenn., 1899, 95 F. 345 , where the history is discussed at length.) It has been said that this statute became a part of our common law. (Bristol v. United States, 7 Cir., 1904, 129 F. 87 ). In 1892 Congress adopted an act providing for proceedings in forma pauperis, quite similar to the statute of 11 Henry VII ( 27 Stat. 252 ) and applying only to civil cases. This was held not to apply to appeals or writs of error, either to the Circuit Court of Appeals (Bradford v. Southern Ry. Co., 1904, 195 U.S. 243 , 25 S.Ct. 55 , 49 L.Ed. 178 ) or the Supreme Court (Gallaway v. Fort Worth Bank, 1902, 186 U.S. 177 , 22 S.Ct. 811 , 46 L. Ed. 1111 ). In Bradford, the Supreme Court said that the statute should be con *604 strued strictly, because it allows a plaintiff to proceed “at the expense of others.”

In Kinney v. Plymouth Rock Squab Co., 1915, 236 U.S. 43 , 35 S.Ct. 236 , 59 L.Ed. 457 , there was a petition for leave to prosecute a writ of error in forma pauperis. The action was based upon a nonexistent judgment. The court held that the action was without merit, and denied leave. It expressly said that the broadening of the coverage of the statute by the 1910 amendment ( 36 Stat. 866 , from which the present statute does not differ materially) did not change the “discretion as to the meritorious character of the cause” that the court was to exercise.

As my brother ROSS points out, many cases state that a proceeding in forma pauperis is purely statutory (Stanley v. Swope, 9 Cir., 1938, 99 F.2d 308 ; Brown v. Johnston, 9 Cir., 1938, 99 F.2d 760 ); that it is a privilege, not a right (In re Pierce, 9 Cir., 1957, 246 F.2d 902 ; De-Maurez v. Swope, 9 Cir., 1939, 104 F.2d 758 ; Jefferson v. United States, 9 Cir., 1960, 277 F.2d 723 ; Barkeij v. Ford Motor Co., 9 Cir., 1956, 230 F.2d 729 ); that the court has discretion (Kirby v. Swope, 9 Cir., 1955, 218 F.2d 814 ; Huffman v. Smith, 9 Cir., 1949, 172 F.2d 129 ; Jefferson v. United States, supra). I cite only Ninth Circuit eases.

Í think that, when the action is a civil suit by a state prisoner against his jailers, whether under the Civil Rights Act or not, the district court should have, and has, a broad discretion, and can deny leave to proceed in forma pauperis even though the complaint does state a claim for relief, if the court is of the opinion that the plaintiff’s chances of ultimate success are slight. This view is grounded upon two policy considerations: (1) that it would be disruptive of prison discipline to permit such a suit to proceed while the prisoner is still in custody, whether the prisoner be a federal convict or a state convict, and (2) that in the case of state convicts the maintenance of such suits in federal courts would produce unseemly conflict between federal courts and state authorities.

My brother ROSS points out the statute of limitations is suspended while the-prisoner remains confined, so that he does-not lose his asserted rights if he has any. The case might be different if there were-no tolling statute in the jurisdiction involved.

In two of our recent cases, Reece v.. State of Washington, 9 Cir., 1962, 310 F.. 2d 139 and Wright v. Rhay, 9 Cir., 1962, 310 F.2d 687 , it is stated that the court’s authority to deny leave to proceed in forma pauperis, in a state prisoner’s civil' rights action against his jailers, “is to be-exercised with great restraint, and generally only where it would be proper to-dismiss the complaint sua sponte before-service of process if it were filed by one-tendering the required fees.” The quoted language used was dictum, and in my opinion, should not be applied to cases in. which a prisoner sues his jailers. Whether it is a proper standard in other civil cases can be determined at an appropriate: time.

. I am aware that there are those who think that this judicial policy is mistaken, but the cases indicate that there are not many judges who think so. See Comment, 72 Yale Law Journal 506 (1963).