Robert F. Dugan and Roxanna F. English v. Warden Lumpkin, Officers Buckley and Bennett

640 F.2d 189 Robert F. DUGAN and Roxanna F. English, Plaintiffs-Appellants, v. Warden LUMPKIN, Officers Buckley and Bennett, Defendants-Appellees. No. 78-3775. United States Court of Appeals, Ninth Circuit. Sept. 12, 1979. As Amended Dec. 6, 1979. Judith S. Feigin, Asst. U. S. Atty., San Diego, Cal., for defendants-appellees. Appeal from Southern District of California. Before ELY, WRIGHT and WALLACE, Circuit Judges. 1 Upon due consideration, the motion to dismiss and the motion for appointment of counsel are denied. 2 While it is the "preferable procedure" for the district court to allow the appellants to file their complaint in forma pauperis and then to treat the case on the merits, see Brown v. Schneckloth, 421 F.2d 1402, 1403 (9th Cir.) (per curiam), cert. denied, 400 U.S. 847 , 91 S.Ct. 95 , 27 L.Ed.2d 85 (1970), we have not made that practice mandatory. As we stated in Dawson v. Lynch, 423 F.2d 1136, 1136 (9th Cir. 1970) (per curiam), in circumstances where the district court had followed Brown 's "preferable procedure": 3 This circuit has made clear that "the preferable procedure," though not the mandatory procedure, for handling an in forma pauperis claim of dubious merit…

Upon due consideration, the motion to dismiss and the motion for appointment of counsel are denied.

While it is the “preferable procedure” for the district court to allow the appellants to file their complaint in forma pauperis and then to treat the case on the merits, see Brown v. Schneckloth, 421 F.2d 1402, 1403 (9th Cir.) (per curiam), cert. denied, 400 U.S. 847 , 91 S.Ct. 95 , 27 L.Ed.2d 85 (1970), we have not made that practice mandatory. As we stated in Dawson v. Lynch, 423 F.2d 1136, 1136 (9th Cir. 1970) (per curiam), in circumstances where the district court had followed Brown’s “preferable procedure”:

We see no reason to reject that language and to make mandatory that which we have stated only to be preferable. Thus, based upon the record in this case, we will not upset the discretion of the district judge.

The district court’s order of December 12, 1978 is hereby affirmed.

(dissenting):

I respectfully dissent. As I see it, the majority, in order to reach its result, blithely disregards the teaching of our own court’s prior decision in Brown v. Schneckloth, 421 F.2d 1402 (9th Cir. 1970), cert. denied, 400 U.S. 847 , 91 S.Ct. 95 , 27 L.Ed.2d 85 (1970). There, we held that

Id. at 1403. See also Stiltner v. Rhay, 322 F.2d 314, 317 (9th Cir. 1963) and Brown v. Brown, 368 F.2d 992, 993 (9th Cir. 1966).

*190 Unquestionably, there is a divergence of opinion as to whether leave to proceed in forma pauperis properly may be denied at the filing stage on the ground that the action is frivolous. Sinwell v. Shapp, 536 F.2d 15, 18-19 (3rd Cir. 1976) (see cases cited there). Nevertheless, the better reasoned cases cited in Sinwell , including our own decision in Brown v. Schneckloth, supra, follow the recommendations contained in the committee report submitted to the Federal Judicial Center entitled “Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts” (1975):

Report at pp. 31-32.

I think it wrong summarily to conclude, at least without setting forth detailed reasons why, that the action of Dugan and English is so patently…