The opinion of the court was delivered by: ROSENBERG
The pleading as presented is an integrated petition and complaint and avers that on or about January 22, 1965, as the plaintiff was leaving the downtown department store of the defendant, Joseph Horne Company, he was seized, assaulted and accused of shoplifting, searched and held in custody by employees and agents of the defendant; that at the termination of the search, when no stolen goods or contraband had been found on the plaintiff, he requested to be released; that he was informed that Mr. Burke, the head Security Officer of the defendant had been contacted and that Mr. Burke ordered the plaintiff held; that he remained in unlawful and illegal custody from 10:30 that morning until 6:30 that evening, when he was taken before a City Magistrate; that the plaintiff was informed that he was being charged with a violation of the Professional Thieves Act of June 24, 1939, P.L. 872, § 821 (18 P.S. § 4821); that at the hearing before the magistrate, Mr. Burke presented the charge against the plaintiff and "for sole validation presented the plaintiff's police record"; that despite the objections of the plaintiff, the magistrate considered the record and found the plaintiff guilty; and that the magistrate then summarily sentenced the plaintiff to 30 days in Allegheny County Jail.
The plaintiff then alleges that "by reason of the aforesaid" he has suffered damages in the amount of $800,000. The petitioner-plaintiff alleges also that he is a citizen of the United States. He does not allege any specific domicile. The pleading was forwarded by the Warden of the United States Penitentiary at Lewisburg, Pennsylvania, and the communications to the Clerk of the United States District Court stated that it was done at the request of the "above-named inmate" and that Davison had no money in his commissary account. Thus, it appears that the petitioner-plaintiff is incarcerated in a Federal Penitentiary outside of the Western District of Pennsylvania.
Three preliminary questions are presented by this petition: (1) What right or duty does the District Court have to appoint counsel in a case of this kind?; (2) Does the District Court have the power to order the petitioner-plaintiff's appearance at the trial if the filing of the complaint is to be permitted?; and (3) Should the petition be allowed for filing the complaint in forma pauperis?
Section 1915 of Title 28 U.S.C., respecting proceedings in forma pauperis, provides:
"(d) The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious."
In United States v. Leser, 233 F. Supp. 535 (D.C.Cal., 1964), it was held that under this section the court may merely request an attorney to represent indigent persons, but in view of constitutional provisions forbidding involuntary servitude, this section does not give the court power to compel or coerce an attorney to represent anyone.
This principle has been often stated. In United States ex rel. Gardner v. Madden, 352 F.2d 792, C.A.9, 1965, a civil rights action under § 1983 of 42 U.S.C., it was said: "It is true that the appointment of counsel in a civil case is, as is the privilege of proceeding in forma pauperis, a matter within the discretion of the district court. It is a privilege and not a right." (page 793) In Cole v. Smith, 344 F.2d 721, C.A.8, 1965, an action under the Civil Rights Act, "The appointment of counsel to represent appellant, and subsequent dismissal as 'frivolous and malicious' was within the ambit of § 1915(d), * * *. Such procedure is, of course, directed to the sound discretion of the District Court." In Moss v. Thomas, 299 F.2d 729, C.A.6, 1962, an action under the Civil Rights Act, "* * * in contrast to a criminal proceedings in which there is a duty upon the Court to assign counsel to represent an indigent defendant, a court in a civil case with respect to the appointment of counsel is endowed with discretion." And in Miller v. Pleasure, 296 F.2d 283, C.A.2, 1961, an action for damages for false imprisonment, "The provision for assignment of counsel, 28 U.S.C. § 1915(d), clearly leaves the power discretionary with the judge - at least in a civil case - and even provides for dismissal if he is satisfied that the action is frivolous or malicious. See Reid v. Charney, 6 Cir., 235 F.2d 47; Taylor v. Steele, 8 Cir., 194 F.2d 864, certiorari denied 343 U.S. 973, 72 S. Ct. 1080, 96 L. Ed. 1367; Ligare v. Harries, 7 Cir., 128 F.2d 582. In this it is in contrast with the more mandatory provisions of 28 U.S.C. § 1915(a), where leave to proceed in forma pauperis should be granted on a proper showing unless the action is frivolous. Ellis v. United States, 356 U.S. 674, 78 S. Ct. 974, 2 L. Ed. 2d 1060."
In a recent decision in the District Court of Nebraska ( Rhodes v. Houston, 258 F. Supp. 546, 1966) District Judges Van Pelt and Delehant dealt with the question of the appointment of counsel in civil actions in an excellent and exhaustive opinion and reached the same conclusion, that appointment of counsel is entirely discretionary and should be allowed only in exceptional circumstances.
The petitioner-plaintiff cites Louis DiCarlo v. Joseph Horne, C.A. 65-1211, in which a member of this Court procured the appointment of counsel to proceed in a case similar to this one. I have examined that case and find that the Judge stated that he had no authority for making the appointment and all he could do was to call upon volunteers. Such a comment by a judge does not present either precedent or authority.
A second preliminary question is presented by the petitioner-plaintiff's incarceration in the Federal Penitentiary at Lewisburg, located in the Middle District of Pennsylvania. We have on the record that the petitioner-plaintiff is a citizen of the United States and that he is domiciled, presumably temporarily, in a Federal penitentiary in the Middle District of Pennsylvania. There is no evidence of the term for his incarceration and one may presume that it is for a long period of time. Under these circumstances, if the complaint is filed, will the petitioner be available for all processes to which he becomes answerable upon the filing of the complaint? Again, I must assume that he will not be. Will the petitioner-plaintiff, if the complaint is allowed, be available for trial of the case? We have no evidence on that, but I may assume that he will not be, and this in spite of the fact that he might have a lawyer locally who may take care of the miscellaneous procedural matters and see to the calling of the witnesses. But clearly, the petitioner-plaintiff himself would be an indispensable witness.
The Government has already incurred certain expenditures in the forwarding of the petition to this Court. If the complaint is permitted to be filed in forma pauperis, an additional expense is incurred by the Government; and when the case is ready for trial, it must be assumed that the Government will be required to transport him from the Middle District to the Western District with all of the responsibilities that would be imposed upon it - that is, expenditure of funds for transport, for providing of adequate guard and further providing for the protection of the public against his possible escape. Does the Government or this Court have the ...