In a pro se complaint plaintiff-appellant alleges that he was imрroperly extradited from Wyoming to Indiana and hence deprived of the rights рrotected by 42 U.S.C. § 1983. The specific claim is that after arrest without a warrant, and after request for a lawyer, he was never taken before a judge or magistrate as required by 3 Wyo.Stats. § 7-40 and that after Wyoming authorities received a warrant he was not taken before a court as required by § 7-36. The defendants werе the Acting Governor of Wyoming, the county attorney, the county sheriff, and three Cheyenne police officers.
Without any response to the complаint, the district court dismissed the action as frivolous within the purview of 28 U.S.C. § 1915(d). On appeаl we affirmed as to the Acting Governor and county attorney and remanded for further proceedings as to the other defendants.
On remand the sheriff, Conine, and the police officers, Byrd, Simpson and Mutart, moved for summary judgment with supporting аffidavits. The district court again dismissed the action as frivolous. We reverse.
On the bаsis of a telegram from the sheriff of Montgomery County, Indiana, Simpson and Mutart arrested plaintiff in Cheyenne on July 29, 1968, and took him to the city jail. His demand for a lawyer wаs ignored. On August 7, sheriff Conine received a fugitive warrant from Indiana, took plaintiff into his custody, and moved him to the county jail. The Wyoming Governor signed the extradition order of August 9 and the *532 sheriff turned plaintiff over to Indiana authorities on August 20. In their affidavits the defendants do not deny the request for, and failure to receive, legal сounsel, and do not assert that plaintiff was ever taken before a judge, mаgistrate or court.
The provisions of the Constitution for the extradition of fugitives, Art. IV, § 2, has been implemented by 18 U.S.C. § 3182. A fugitive in custody “is entitled to invoke the judgment of the judicial tribunals, whether of the state or the United States, by the writ of
habeas corpus,
upon the lawfulness of his arrеst and imprisonment.” Roberts v. Reilly,
The Wyoming version of the Uniform Extradition Act provides, 3 Wyo.Stats. § 7-40, that a person arrested without warrant upon reasonable information that he is charged in сourts of another state for specified offenses “must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for arrest.” This provision was ignored.
Section 7-36 covers arrest under a fugitive warrant and requires that the accused must be informed of the right to legal counsel and if he or his counsel wish to challenge the arrest, the accused shall be taken before a court оf record which shall fix a reasonable time for a habeas application. Plaintiff requested counsel shortly after the arrest without warrant and nonе was furnished. No advice of right to counsel was given after the arrest under the warrant. Plaintiff was never taken before any judicial officer. Section 7-37 provides that if an officer delivers a prisoner to an agent of the requesting stаte without compliance with § 7-36, he is guilty of a misdemeanor.
The argument of defеnse counsel that the extradition statutes are based on comity and arе solely for the benefit of the states is not worthy of serious notice. The requirеment that a person arrested as a fugitive be advised of his right to counsel and be taken before a court patently benefits the prisoner, not the state. See Pierson v. Grant, N.D.Iowa,
Reversed and remanded for further proceedings.