William T. X. Fulwood v. Donald Clemmer, Director, District of Columbia Department of Corrections

295 F.2d 171, 111 U.S. App. D.C. 184, 1961 U.S. App. LEXIS 3739

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 14, 1961
• Docket: 16056
• Status: Published

Opinions

DANAHER, Circuit Judge.

Purporting to seek relief in the nature of mandamus, appellant sought to file in the District Court a petition in forma pauperis, supported by an appropriate affidavit of poverty.¹ No answer or other pleading was filed by, and no appearance was entered for, the appellee.² Leave to file without prepayment of costs was denied³ by the District Judge. Shortly thereafter the court granted a petition for leave to appeal in forma pauperis. No reasons were set forth for either ruling.

In White v. Clemmer, 111 U.S. App.D.C. -, 295 F.2d 132, we pointed out that a remedy in the nature of mandamus is not available in the absence of specific allegations sufficient to bring the claim within the controlling conditions upon which relief may be available. Compliance with the principles there outlined is of special importance if the courts are to be asked to review the conduct of officials charged with the administration of the Lorton Reformatory.

Here, however, the appellant alleged he had filed a petition with the late Commissioner Karrick complaining that he had been subjected to cruel and unusual punishment, and because of doing so, had been placed in solitary confinement. Clearly, the appellant was to be permitted to file such a petition.⁴

Moreover, he alleged that because he wrote a letter of protest to the Director, appellee herein, prison officials immediately began persecuting him and placed him in solitary confinement on a false charge of lying about the officers and officials. Thereafter he was placed on “special treatment” where a prisoner “gets cold food and very little recreation” and no medical treatment if the officials inform the doctor “they are against him for any reason.”

Appellant’s action by itself in seeking administrative relief through the Director and the District Commissioner surely may not properly predicate the solitary confinement and other punitive treatment of which the prisoner complains. If his punishment could be shown to be attributable to that action, appellant is entitled to an order so fashioned as to provide adequate relief.⁵

It is our view that the District Court erred in denying leave to file the petition. Though inartfully prepared by a nearly illiterate prisoner, unaided by counsel, we have noted in the petition two important facets which distinguish appellant’s claim from certain others⁶ which have come to our notice. The allegations we have discussed stand wholly uncontroverted on this record.

Accordingly, the case will be remanded to the District Court with directions:

(1) that appellant’s petition be filed with leave to be granted to amend within a reasonable time in such respects as will exhibit the basis for appellant’s claim;

(2) that counsel be appointed to assist the appellant; and (3) that such hearing be afforded as may be required in view of such pleadings as may be filed.

Reversed.

1 . The District Court should have permitted the petition to be filed. Martin v. United States, 10 Cir., 1960, 273 F.2d 775, 778, certiorari denied 1961, 365 U.S. 853, 81 S.Ct. 818, 5 L.Ed.2d 816; United States ex rel. Morris v. Radio Station WENR, 7 Cir., 1953, 209 F.2d 105, 107; accord, Higgins v. Steele, 8 Cir., 1952, 195 F.2d 366, 369; cf. Smith v. Bennett, 1961, 365 U.S. 708, 81 S.Ct. 895, 6 L. Ed.2d 39.

2 . Service was certified as follows:

“I hereby certify that I have mailed a copy of the foregoing to the United States District Attorney office in the District of Columbia to the District Court, Washington, D. C.

“William T. X. Fulwood

“Petitioner pro se.”

3 . Denial by a District Judge of a motion to proceed in forma pauperis is an appealable order. Roberts v. United States District Court, 1950, 339 U.S. 844, 845, 70 S.Ct. 954, 94 L.Ed. 1326; United States ex rel. Morris v. Radio Station WENR, supra, 209 F.2d at page 106; accord, Ex parte Quirin, 1942, 317 U.S. 1, 24, 63 S.Ct. 1, 2, 87 L.Ed. 3; Martin v. United States, supra.

4 . Reorganization Order No. 34 — Department of Corrections by D.C.Code, Title 1, Supp. VIII 1960, page 50, retains the principle that the Department of Corrections is established “under the direction and control of a Commissioner.” See Parts I and II. Moreover, by their Policy Order, dated November 25, 1953, the Commissioners have provided that any person at Lorton who has been aggrieved may “within ten days, file with the Secretary of the Board of Commissioners a written statement of the alleged violation setting forth specifically and in detail the facts of the matter. The Commissioners will thereafter cause an investigation to be made and, in the event that the complaint is justified, will take appropriate action.”

It is possible that appellant may exhibit a basis for relief if the treatment complained of stemmed only from his seeking to avail himself of the remedies already provided. Cf. Coffin v. Reichard, 6 Cir., 1944, 143 F.2d 443, 155 A.L.R. 143. Compare United States ex rel. Accardi v. Shaughnessy, 1954, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681. See also Service v. Dulles, 1957, 354 U.S. 363, 388, 77 S.Ct. 1152, 1 L.Ed.2d 1403.

5 . Certainly the label he has given his pleading will not control if he shows he is entitled to relief. Cf. United States v. Morgan, 1954, 346 U.S. 502, 505, 74 S.Ct. 247, 98 L.Ed. 248; Moon v. United States, 1959, 106 U.S.App.D.C. 301, 302, 272 F.2d 530, 531; Thomas v. United States, 1959, 106 U.S.App.D.C. 234, 237, 271 F.2d 500, 503.

He also alleged that the treatment above described and the refusal of needed medical attention became his lot because of his religion “which is islam.” (Sic.) What that religion may be or what its practices, has not been alleged. The complaint is vague and conclusory only and quite devoid of indication of such connection between the treatment and his religious practices or the denial thereof as may predicate relief. White v. Clemmer, supra; cf. Riley v. Titus, 89 U.S.App.D.C. 79, 80, 190 F.2d 653, 654, certiorari denied 1951, 342 U.S. 855, 72 S.Ct. 82, 96 L.Ed. 644. For all we are shown, appellant’s practices are in contravention both of law and of prison administration regulations.

6 . Contrary to appellee’s argument on brief, we did not in White v. Clemmer, supra, hold that the action must be dismissed for failure to join the Commissioners as parties. We noted that the District Judge had so ruled, but we did not pass upon that ground. We said only “for the reasons to be stated” the order must be affirmed. We held that the appellants had failed to state a cause of action for which relief might be afforded. Cf. Wilson v. Schnettler, 1961, 365 U.S. 381, 383, 384, 81 S.Ct. 632, 5 L.Ed.2d 620. And see the supplemental “Per Curiam” in White v. Clemmer, 111 U.S.App.D.C. -, 295 F.2d 132, August 8, 1961.