Ex parte Hall

31 F. Supp. 86, 1940 U.S. Dist. LEXIS 3542

• Court: District Court, N.D. California
• Decided: January 13, 1940
• Status: Published

Opinion

DENMAN, Circuit Judge.

H. Karl Hall claiming to be imprisoned in the United States Penitentiary, Alcatraz Island, California, in the custody of James A. Johnston, Warden of said penitentiary, applies to me, as a judge, for an order permitting him to proceed in forma pauperis in a habeas corpus proceeding he proposes to initiate. The application erroneously entitles the matter in the United States Circuit Court of Appeals.

The Act of Congress¹ providing for the institution of the proceeding to sue in forma pauperis to avoid the fees in a contemplated suit by the pauper requires the application so to sue to be filed in the district court. It also requires that the order allowing him so to proceed must be made by the court. It is not an order which can be made by a judge apart from a court proceeding.

It is urged that because the filing of the application is the institution of a proceeding leading to a final order granting or denying it, a matter which may be of the greatest importance to the pauper in the protection of his rights, and because there is a statute (28 U.S.C.A. § 549) applying generally to the institution of all civil proceedings which requires a fee of $5 to be prepaid the clerk before the filing, § 832 of 28 U.S.C.A. should be construed to permit a judge to entertain the application without filing.

There is no merit in the contention. The specific provision for a pauper in § 832 prevails over the general provisions of § 549. It is irrational to suppose Congress intended the mockery of appearing to give the pauper the remedy of § 832 and then requiring him, without funds, to pay $5.00 to procure the relief.

Since, as a United States Circuit Judge,' I have no jurisdiction of the matter,. the application is dismissed.

1 “Any citizen of the United States entitled to commence any suit or action, civil or criminal, in any court of the United States, may, upon the order of the court, commence and prosecute or defend to conclusion any suit or action, * * * or an appeal to the circuit court of appeals, or to the Supreme Court in such suit or action, including all appellate proceedings, unless the trial court shall certify in writing that in the opinion of the court such appeal * * * is not taken in good faith, without being required to prepay fees or costs or for the printing of the record in the appellate court or give security therefor, before or after bringing suit or action, or upon * * * appealing,' upon filing in said court a statement under oath in writing, that because of his poverty he is unable to pay the costs of said suit or action * * * or appeal, or to give security for the same, and that he believes that he is entitled to the redress he seeks in such suit or action * * * or appeal, and setting forth briefly the nature of his alleged cause of action, or appeal. In any criminal case the court may, upon the filing in said court of the affidavit hereinbefore mentioned, direct that the expense of printing the record on appeal * * * be paid by the United States, and the same shall be paid when authorized by the Attorney General.” 28 U.S.C.A. § 832. Acts of July 20, 1892, c. 209, § 1, 27 Stat. 252; June 25, 1910, c. 435, 36 Stat. 866; June 27, 1922, c. 246, 42 Stat. 666; Jan. 31, 1928, c. 14, § 1, 45 Stat. 54. (Emphasis supplied.)