170 F.2d 397 | 5th Cir. | 1948
The appellant Hilliard sued appellee Brown for $50,000 damages, asserting jurisdiction under former 28 U.S.C.A. § 41 (13),
The facts stated in the petition, however rash and improbable they may seem, must on motion to dismiss be taken as true. Those stated in the briefs filed in the trial court and here are not to be taken as true, nor are they such as might be taken judicial notice of if true. The essence of the petition is that petitioner, imprisoned in the penitentiary since 1941, has made several efforts at relief by habeas corpus in the courts of the United States in Georgia and California, but was denied relief because the judges are afraid of the Federal Bureau of Investigation and are under the influence of the wardens and the Department of Justice, so that the writ of habeas corpus has been suspended as to petitioner. As to appellee it is alleged that he has been notified by petitioner of his plight, he being the Representative in Congress of the Tenth Congressional District of Georgia, in which petitioner resides, and “The defendant has been requested to take part in and prevent the denial of a constitutional right, which he has refused and neglected to do . . .by an investigation from the proper authorities (the Representatives) one of which is the defendant. Therefore because of the defendant’s refusal and neglect to prevent or aid in preventing the denial of constitutional right to be heard on a writ of habeas corpus as the statute demands,-the defendant has subjected and caused plaintiff to be deprived of his civil rights”.
Overlooking the scurrility of the briefs apparently written by appellant which a lawyer would not for that fault be permitted to file, and assuming, without deciding, the jurisdiction of the court, we hold that no cause sufficient to authorize relief is shown. Representative Brown, elected by the people of his district and responsible to them and the House of Representatives for his official conduct, is not suable in court for official neglect of one of his constituents. It is not his duty to protect any of them in court cases. Any failure or abuse in such is remediable by appeal. Corruption or fear in a judge may
We have patiently and perhaps unnecessarily explained why appellant is not entitled to the relief he here seeks. If he has just grounds for a habeas corpus that writ is still available and may be granted by all grades of federal judges from the Chief Justice down. It is patently rash to say they are all cowardly or corrupt, — there is none that doeth good, no not one.
Judgment affirmed.
In 1948 Revision, 28 U.S.C.A. § 1343.