in habeas corpus, nevertheless the allowance of great discretion in this matter is even more appropriate to civil actions where the plaintiff's claims relate not to his right to freedom from incarceration but merely to his right to money damages.
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 right to put the public to such expense and to issue any writ that will bring an individual so situate into a District such as in this case when trial is called for?
It is provided in 28 U.S.C. § 2241:
"Power to grant writ
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. * * *