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

640 F.2d 189

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 6, 1979
• Docket: 78-3775
• Status: Published

Opinions

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”:

This circuit has made clear that “the preferable procedure,” though not the mandatory procedure, for handling an in forma pauperis claim of dubious merit is that followed here by the district court.

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.