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February 16, 1967

UNITED STATES of America ex rel. William DIAMOND

The opinion of the court was delivered by: LORD, JR.

 JOHN W. LORD, Jr., District Judge.

 Plaintiff is an inmate of the State Correctional Institution at Graterford. On October 5, 1966 he filed an in forma pauperis Civil Rights Act complaint listing various prison officials as defendants. Upon the motion of defendants, the complaint was dismissed by this Court on January 3, 1967 for failure to state a claim upon which relief could be granted, pursuant to Fed.R.Civ.P. 12(b)(6). On January 18, 1967 the plaintiff forwarded to this Court four packets of additional materials, indicating that he had been denied access to this Court in his attempts to amend his complaint.

 Prisoners are clearly entitled to the protection afforded by the Civil Rights Act. 42 U.S.C.A. § 1983. Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030 (1964); Brown v. Brown, 368 F.2d 992 (9th Cir. 1966). Courts have adopted a practice of making all reasonable efforts to see that a prisoner's complaint will not fail entirely "* * * because he misconceives the nature of the proceeding or mislabels his petition." Roberts v. Pegelow, 313 F.2d 548, 550 (4th Cir. 1963). See also, Richey v. Wilkins, 335 F.2d 1 (2nd Cir. 1964); Kregger v. Posner, 248 F. Supp. 804 (E.D.Mich.1966); United States ex rel. Henson v. Myers, 244 F. Supp. 826 (E.D.Pa.1965). To date, plaintiff has filed over one hundred and forty handwritten pages of complaints and petitions with this Court. These materials, replete with involved legal citations from every conceivable source, allude, from time to time, to plaintiff's continuing psychotic problems, such as "hearing voices." However, upon a careful review of all the materials supplied to this Court to date, plaintiff has raised two meritorious contentions: that his right to a fair trial had been jeopardized by an intentional withholding of his civilian clothing by prison officials who compelled him to stand trial in his prison uniform and that his access to this Court has been blocked. Of course it is presently impossible for this Court to assess the truthfulness of plaintiff's contentions in the present posture of the case. Clarification will have to await trial or a motion for summary judgment supported by affidavits.

 Plaintiff has requested the assistance of nearly every legal and equitable power of this Court from injunction, habeas corpus and damage actions to innumerable hybrid proceedings which would be pointless to further catalogue. This Court will deny plaintiff leave to proceed in forma pauperis on all these matters now pending, with the exception that plaintiff will be granted leave to file an amended complaint in a manner that will be indicated below.

 Plaintiff's contentions can be categorized as complaining of a deprivation of his constitutionality protected civil rights by state officials. Such complaints are properly brought under 42 U.S.C.A. § 1983, which states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * * * subjects, or causes to be subjected, any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

 Jurisdiction exists in this Court under 28 U.S.C.A. § 1343(3). The purpose of this legislation is to allow redress in a federal court for the tortious deprivation, by any state official, acting under color of state authority, of a right secured by the Fourteenth Amendment. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). In Monroe, Mr. Justice Douglas summarized the purpose of this legislation as follows:

It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies. Id. at 180, 81 S. Ct. at 480.

 As heretofore stated, this Court granted the defendant's motion to dismiss for failure to state a claim upon which relief could be granted. The order was entered on January 3, 1967. In the light of a reassessment of plaintiff's contentions, by reason of the additional information furnished the Court, especially with the serious allegation of blocking plaintiff's access to this Court, the entering of an order of dismissal at this time is untimely. In any event, "* * * even where the motion is granted, as where a complaint is dismissed for failure to state a claim on which relief can be granted, the party has the right to file an amended pleading as of course, though this right must be exercised in a reasonable time." Wright, Federal Courts § 66, p. 239 (1963). The motion to dismiss for failure to state a claim should not be granted unless it appears, with certainty, that a plaintiff would be entitled to no relief under any state of facts which he could prove in support of his claim. See, 2 Moore, Federal Practice Para 12.08 (2d ed. 1965, Supp. 1966). This district has held that:

All that is necessary to prevent the dismissal of a Complaint brought under 42 U.S.C.A. § 1983 is that it allege facts constituting a deprivation under color of state authority of a right guaranteed by the Fourteenth Amendment. Roberts v. Trapnell, 213 F. Supp. 49, 50-51 (E.D.Pa.1962). Accord Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962).

 On the basis of the authorities listed above, outright dismissal of plaintiff's complaint for failure to state a claim upon which relief could be granted would be improper. It is not open to serious dispute that in the present case the defendants were acting under color of state authority. (See, Roberts v. Pepersack, 256 F. Supp. 415, 422 (D.Md.1966), a case noteworthy for thorough discussion and exhaustive compilation of § 1983 authorities.) The critical issue facing this Court at this juncture involves the second essential element for adequately demonstrating a claim under § 1983 - whether the defendants have deprived the plaintiff of a right secured by the Fourteenth Amendment. As a guideline to assist in determining whether a Fourteenth Amendment right has been denied, one court has suggested that:

The measure of a citizen's constitutional rights is not left to the determination of the community-at-large. It is determined by the courts. If that standard has not yet been enunciated by a court in a manner which makes its applicability to the incident at hand clear, the potential defendant cannot be expected to conform his conduct to it. Bowens v. Knazze, 237 F. Supp. 826, 829 (N.D.Ill.1965).

 The guideline suggested by the court in Bowens will be adopted in evaluating the specific contentions ...

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