Lumbard, Chief Judge, and Waterman and Hays, Circuit Judges. Lumbard, Chief Judge (dissenting).
Plaintiff in this libel action moves for leave to proceed in forma pauperis and for assignment of counsel in connection with an appeal from an order dismissing his complaint. We grant the motion for leave to proceed on the appeal in forma pauperis and at the same time reverse the order from which the appeal is taken. Our action makes it unnecessary for plaintiff to have counsel assigned for the appeal.
Plaintiff is incarcerated in the New Jersey State Prison at Trenton under a sentence of life imprisonment. He has filed a complaint alleging that the defendant has libeled him and seeking damages for the libel.
The district court granted defendant's motion to dismiss the complaint on the ground of plaintiff's incapacity to sue. The district court based its action on New York Penal Law § 511(1) which provides:
"A person sentenced to imprisonment for life is thereafter deemed civilly dead."
Even if the district court was right in holding that incapacity to sue is a necessary incident of the concept of civil death, it was error to apply the law of New York rather than the law of plaintiff's domicile as required by Federal Rules of Civil Procedure, Rule 17(b). There was no showing that under the law of his domicile plaintiff was incapable of suing.
On the merits we are of the opinion, as was the district court, that the complaint is not so clearly frivolous as to justify dismissal "at this stage of the proceeding."
Application for leave to proceed in forma pauperis granted; application for assignment of counsel denied; order reversed and case remanded to the district court with direction to take jurisdiction of the action.
LUMBARD, Chief Judge (dissenting):
I disagree with the majority, and in light of the important questions of federal jurisprudence raised by this appeal, I think it necessary briefly to set forth my views.
Section 1915 of the Judicial Code, 28 U.S.C. § 1915(a), states that "Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor." Subsection (d) of Sec. 1915 provides that "The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case * * * if satisfied that the action is frivolous or malicious." (Emphasis added.) It is well settled that exercise of the discretion to grant leave to proceed in forma pauperis under this statute involves an assessment of the merits of the plaintiff's action, e.g., Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 35 S. Ct. 236, 59 L. Ed. 457 (1915); Richardson v. Hatch, 134 F. Supp. 110 (W.D.Mich.1955) (and cases cited therein), and that the merits of the action will be more carefully scrutinized in a civil case than in a criminal appeal before leave to proceed is granted, see Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963).
The trial court granted defendant's motion to dismiss on the ground that Urbano lacked capacity to sue. N.Y.Penal Law, § 511. In my opinion, Urbano's action here is "frivolous" within the meaning of Sec. 1915(d). Thus, defendant's motion below to deny leave to proceed and to dismiss the complaint should have been granted, and I would deny Urbano's application to this court in all respects. A statement of the facts is necessary to support this conclusion.
On May 19, 1960, Urbano was sentenced to life imprisonment for a murder committed in the course of a New Jersey robbery; he was committed to a New Jersey State penitentiary where he is now serving his life sentence. On or about September 14, 1961, the Federal Bureau of Investigation issued a press release purporting to describe Urbano's criminal carrier, which had culminated in the robbery-murder for which he was convicted. On December 9, 1962, the defendant newspaper published a feature story in its Sunday edition which traced Urbano's fantastic "triple life" as a bank and department store robber in Pennsylvania, Maryland and New Jersey, a "Continental ...