George Tolbert, Jr. v. Warden Bragan

451 F.2d 1020, 1971 U.S. App. LEXIS 6939

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 24, 1971
• Docket: 71-2537
• Status: Published

Opinion

PER CURIAM:

George Tolbert, Jr., appeals from the district court’s denial of leave to file his Civil Rights 1 complaint in forma paw-peris without requiring any responsive pleading of the defendants. We reverse and remand.

Tolbert is presently serving a sentence in a federal prison. He alleges that he was taken from there to the Jefferson County, Alabama, jail on a writ of ha-beas corpus ad prosequendum to answer state criminal charges against him. After disposition of these charges and while awaiting transportation back to federal prison, Tolbert alleges that five jailers beat him severely about the head and body with blackjacks, leaving him badly injured. He alleges that the beating was done under color of state law and racially motivated. Tolbert alleges that the white jailers beat him, a black man, “for sheer sport and/or to satisfy their racist egos.”

The district court held that these are “merely allegations of assault and battery and do not involve federal constitutional questions. These are matters which, if true, are within the province of prison officials or state courts of the State of Alabama.”

We do not agree. Tolbert has alleged more than a mere matter of prison administration or of state law. Severe physical abuse of prisoners by their keepers without cause or provocation is actionable under the Civil Rights Act. See Lowe v. Warden, 5 Cir. 1971, 450 F. 2d 9; Collum v. Butler, 7 Cir. 1970, 421 F.2d 1257; Allison v. California Adult Authority, 9 Cir. 1969, 419 F.2d 822; Wiltsie v. California Department of Corrections, 9 Cir. 1968, 406 F.2d 515.

The order of the district court denying Tolbert’s motion for leave to file his complaint in forma pauperis is reversed and the cause is remanded for further appropriate proceedings.

Reversed and remanded.

1 . 42 U.S.C. § 1981 et seq.