Essentially, Ellis' allegations are as follows: In 1957, he had an operation in Jackson Michigan Hospital. Since he has been in the Lewisburg Penitentiary, he has received various medical treatment for a certain infection. He was examined, after many complaints, by a specialist who informed Ellis "* * * that he would just have to learn to live with it * * *" ("Petition", p. 4). He further alleges that Dr. Weller will not give him any more medicine and that Warden Parker would not give him an interview in this regard.
Ellis also alleges that he was placed in punitive segregation for "* * * another inmate sucker punching plaintiff. * * *" Ellis was "* * * accused of hitting an officer while fighting and defending himself." ("Petition", p. 5.) He was subsequently placed in punitive segregation, again, for being involved in another fight. He claims that he was placed in punitive segregation because of his persistent attitude toward medical treatment, and not because of the fights as the prison officials stated.
Ellis also claims that in filing a claim with the Disabled Veterans Administration, Dr. Weller informed him that he could fill out the necessary medical forms from Ellis' medical record. Ellis claims he has a right to a complete physical examination.
Ellis claims that jurisdiction is obtained under 28 U.S.C. §§ 1331, 1343, 1346(b), 1349, 1651, 2201, 2674, 2680; 42 U.S.C. §§ 1983, 1985 and Rule 3 of the Federal Rules of Civil Procedure.
28 U.S.C. §§ 1331, 1349, 1651, 2201 are clearly inapplicable. 42 U.S.C. §§ 1983, 1985 refer to the deprivation of rights under color of law of any state or territory, not under the color of federal law, thus these statutes are inapplicable. Norton v. McShane, 332 F.2d 855, 862 (5th Cir. 1964), cert. denied, 380 U.S. 981, 85 S. Ct. 1345, 14 L. Ed. 2d 274 (1965). Accordingly, 28 U.S.C. § 1343 is also inapplicable. However, in United States v. Muniz, 374 U.S. 150, 83 S. Ct. 1850, 10 L. Ed. 2d 805 (1963), the Supreme Court held that a federal prisoner can sue under 28 U.S.C. §§ 1346(b), 2671-2680, to recover damages for personal injuries sustained during confinement in a federal penitentiary, where said injuries were caused by the negligent or wrongful act of a government employee. Thus, it appears that this Court has jurisdiction under the Federal Tort Claims Act. Since Ellis dwells on the Federal Tort Claims Act at the end of his "Petition", it appears that he intended to sue the United States under its provisions.
Under 28 U.S.C. § 1915, a federal court may authorize the commencement of a civil suit. In Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965), it is stated that: "It is the duty of the District Court to examine any application for leave to proceed in forma pauperis to determine whether the proposed proceeding has merit and if it appears that the proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis." In Carey v. Settle, 351 F.2d 483, 484-485 (8th Cir. 1965), the Court dealt with the problem of prisoners instituting civil suits against prison officials. In a well reasoned opinion, it is stated:
"Prisoners will not lightly be permitted to use 28 U.S.C.A. § 1915(a) to institute suits for damages or injunction against the officials in whose custody they have been placed for confinement. Taylor v. Steele, 8 Cir., 191 F.2d 852, 853. Such actions are too frequently mere outlets for general discontent in having to undergo penal restraint or of personal satisfaction in attempting to harass prison officials. A court therefore should be satisfied that there exists substantiality as to such a claim, of justiciable basis and of impressing reality before it permits a prisoner to maintain an action therefor on in-forma-pauperis privilege."