United States ex rel. Johnson v. Specter

262 F. Supp. 113, 1967 U.S. Dist. LEXIS 8821

Opinion

MEMORANDUM

FULLAM, District Judge.

Plaintiff, a state prisoner, has applied for permission to proceed in forma pauperis in this action to recover damages under the Civil Rights Act (42 U.S.C. 1981, et seq.). Since his alleged cause of action is patently frivolous, the application will be refused, in accordance with the principles set forth in Woodruff v. City and County of Philadelphia, 38 F.R.D. 468 (E.D.Pa.1965).

Plaintiff’s sole assertion is that he should not have been convicted, and that the defendants in various ways committed errors in the course of his trial. Judicial officials acting as such are immune from suit under the Act. Ginsburg v. Stern, 148 F.Supp. 663 (W.D. Pa.1956), aff’d per curiam, 251 F.2d 49 (3d Cir.), cert. den. 356 U.S. 392, 78 S.Ct. 774, 2 L.Ed.2d 762 (1958). This includes prosecuting attorneys, Ellis v. Wissler, 229 F.Supp. 196 (E.D.Pa.1964); court clerks acting pursuant to direction, Ginsburg v. Stern, 125 F.Supp. 596 (W. D.Pa.1954), aff’d per curiam, 225 F.2d 245 (3d Cir. 1955); and, in most situations, court stenographers, Peckham v. Scanlon, 241 F.2d 761 (7th Cir. 1957).

The only arguably suable defendant named in these proceedings is the public defender who represented plaintiff at the criminal trial. But the complaint fails to charge that defendant with conduct which would give rise to a cause of action under the Act.

Moreover, plaintiff cannot use this litigation as the means to challenge the judgment of conviction in the criminal case. Gaito v. Strauss, 249 F.Supp. 923, (W.D.Pa.), 368 F.2d 787 (3d Cir. 1966).

ORDER

And now, this 6th day of January, 1967, it is ordered that the petition of plaintiff for leave to proceed in forma pauperis is denied.

It is further ordered that the complaint be dismissed.