*1 the court to instruct the failure of taking gov- effects of the both advantage produced an unfair ernment government corresponding disadvantage to defendants. injustice only can be remedied reversing judgment remanding
court and this cause for a new trial. presented
Other reasons have been Lumbard, Judge, defendants Chief dissented. their brief their contention that were errors com-
mitted in the trial of this case. How-
ever, we consider to ex- opinion by disposing
tend this of these contentions, inasmuch as such er- repeated upon rors a second trial.
Reversed and remanded for a new trial. URBANO,
Robert F. Plaintiff-Appellant, NEWS SYNDICATE Defendant- Appellee. Docket 30354. States Court of Second Circuit. Submitted Oct. Decided March Urbano, pro
Robert F. se. Rodgers, City,
James W. appellee. LUMBARD, Judge,
Before HAYS, Judg- WATERMAN and Circuit es.
HAYS, Judge: Circuit in this libel aсtion moves for pawperis leave to in connection dismissing with an from an order complaint. We the motion *2 proceed appeal leave to pauperis on the in authorize the of the commencement, prosecution States forma and at the time or defense of reverse the appeal any suit, proceeding, order from which or is taken. aсtion or civil criminal, therein, pre appeal Our action makes it for or without plaintiff security assigned payment to have counsel and costs or fees appeal: therefor, by person who makes affida pay costs or vit that is unable to such is incarcerated in the New (d) give security Subsection therefor.” Jersey State Prison at Trenton under a “The court Sec. imprisonment. sentence of life He has may request attorney any represent to complaint alleging filed a de- person employ to counsel and unable fendant seeking has libeled him and may dismiss thе case if satisfied ages for the libel. the action is frivolous or malicious.” granted The district court (Emphasis added.) settled well complaint motion to dismiss that exercise of the discretion to grоund plaintiff’s incapacity sue. to proceed pauperis to under leave forma The district court based its action this statute an assessment of involves 511(1) pro- York Penal Law which § action, plaintiff’s g., merits of e. vides : Kinney Plymouth Co., Squab Rock person “A imprisonment sentenced to L.Ed. 457 S.Ct. for life is thereafter deemed (1915); Hatch, 134 F. Richardson v. dead.” Supp. (W.D.Mich.1955) (and cases therein), cited of the and the merits Even if the district court was carefully right will action holding more scrutinized incapacity to sue in a civil necessary case than a criminal is a incident of the granted, proceed before death, leave civil it was error to Dickson, Weller F.2d law of New York rather than the law of (9th plaintiff’s required by domicile as Fed eral 17(b). Rules of Procedure, granted The trial mo- court showing There was no that under the law tion Ur- dismiss on his incapable was bano lacked to sue. N.Y.Penal suing. my opinion, Urbano’s opin On the we action here merits are of is “frivolous” within ion, meaning 1915(d). court, Thus, аs was the defend- that the complaint clearly deny pro- is not so ant’s motion below leave frivolous as stage justify complaint dismissal and “at this of the ceed should dismiss proceeding.” granted, been Ur- have bano’s to this court in all Application, for leave to respects. A statement the facts is pauperis granted; application for necessary this conclusion. denied; order re- versed and case remanded to the district May 19, On sen- Urbano was jurisdiction court with direction to take of the action. imprisonment to life a mur- tenced
der committed in the course of a New Jersey robbery; he was to a LÍJMBARD, (dissent- Jersey penitentiary State where he ing) : is now or sentence. On disagree majority, with the September about the Federal light important questions of fed- Investigation Bureau issued jurisprudence appeal, eral purporting to describe Urbano’s briefly necessary I think it to set forth carrier, had culminated criminal which my views. robbery-murder he was which Dеcember-9, Code, de- On Section of the Judicial convicted. newspaper published 1915(a), “Any a feature fendant U.S.C. states story Sunday cognizable edition traced is not whether the action “triрle life” as a bank fantastic but whether the federal courts should department Pennsyl- store robber exercise their discretion to vania, Maryland “Con- taxpayers’ expense. and New suit at the vivant,” playboy tinental and bon my recognize, it would be As brothers temperamental vagabond secretive and any attorney assign him to unfair to Williamstown, member of a Massachu- *3 go step handle I would one such a trial. grew setts, family. action for libel claim, while further and hold this that newspaper out of that feature. technically “actionable,” of devoid Urbano seems inconceivable that on merit its facts as heretofore go trial could succeed in this matter after a permitted it should on the merits. claims that its public’s Defendant expense. trial at the the upon, fur- article was based and went no not incarcer- federal courts should press than FBI release and ther the effectively deprive ation criminals privileged. therefore the article was diversity jurisdiction access to federal Although under New York law this claim wrongs against redress their depends upon whether the persons, out, prison or is either legislative “judicial proceeding, was a encourage by important also not to suits proceeding proceeding,” or other official merely to inmates instituted are (McKinney’s N.Y.Civil 74 public publishers, harass officials or Consol.Laws, Supp.), ex- c. 1965 the courts, provide clutter the or to a break report in- istence of the could at least be monotony prison Compare in the life. “mitigating troduced as circumstances” (8 Higgins Steele, 195 F.2d 369 v. surrounding the sources 1952); Hoyt, Mattheis grounds information and be- the Therefore, despite (W.D.Mich.1955). article, lief in the truth of the N.Y.Civil Judge Bonsai’s dictum to the effect that Rights Law, (McKinney’s 1965 frivolity only ground, if the “were Supp.). Court would not dismiss the action at assuming stage proceeding,” Even article I would beyond went and included the FBI release affirm lower court’s decision true, entirely inappropriate some material not Urbano an case is damaged by granting still must show that he was of leave to publication. highly improb- pauperis. It seems able that he could show “actual malice” grоund being dispositive of The above part thus, newspaper; un- case, need reach difficult I not der New York not law could recover question whether lacks Urbano punitive damages. See Crane v. However, this suit all. I Telegram Corp., York World N.Y. important think it to note the 470, 476, 126 N.E.2d A.L.R.2d cavalierly an issue so treated compensatory As for majority. ages, credulity it taxes to assume that 460, 470, 14 L.Ed. robbery- оne a sentence for (1965), Supreme 2d 8 Court noted prove newspaper murder could that a Tomp mandate of Erie R. R. attributing article to him other crimes kins, 817, 82 L.Ed. 304 U.S. injured reputa- of a like nature either might here A.L.R. “pain suffering” tion or caused him imply that N.Y.Penal Law 511 is any meaningful extent. controlling capacity, has of Urbano’s se, per as It is true that a libel never been invoked to void a Federal Rule imputation Procedure; crime, implied is actionable with- the. Prosser, proof damages. directly Torts out that where a Federal Rule was (2d 17(b)1 applicable issue, ed. But the to an аs pacity, individual, other or be deter- “The sue sued shall be representative acting ca- mined one the law of his domicile.” a state, here, propo- di in the a sue courts of either а it is to be even assuming versity majority sition But that Massa which the not suit. does dis- 2 prove, applicable, not do how chusetts therefore a different result cursory justified majority can takes at best a a action be- .If, a Bonsai tween look at law. Massachusetts defendant, regardless concluded, declare Massachusetts would of how my-brothers courts, in her distasteful dead own find the majority death.” how can conclude that “civil would intend govern And, same rule to this case? respects. all Massachusetts would fact show so little for New York defend concern ants, strong ap this not reason plying the federal law *4 York, since York New the New capacity “substantially those rules affect
primary
respecting
decisions
human con
system
duct which our constitutional
& E.
A.
PLASTIK PAK
regulation”?
leаves to state
Appellant,
475,
380 U.S. at
at 1146
(concurring opinion of Mr.
Har
Justice
BOWIE, Jr., Trustee, Appellee.
N.
William
;
lan)
Wechsler,
Hart
The Fed
System
No.
eral Courts and the
633-
20063.
Federal
34,
(1953).
ultimately
Perhaps
United States
wrapped up
of law
choice
Ninth Circuit.
17(b)
that Rule
March
1966.
contrary
runs
to the
decision
Mfg. Co.,
Klaxon Co. v.
Stentor Elec.
law rules to be
a federal court
in a
suit must conform to the
prevаiling
rules
in the forum state.
necessarily willing
conclude,
I am not
Judge Bonsai,
as did
that Urbano lacks
this suit under New
law,
I am not
all certain
because
that New York courts would consider Sec-
Neverthelеss,
applicable.3
tion 511
under the
of both
would lack
apply
type
Bonsai held that
was intended to
of suit
to this
Massachusetts,
prior
ar-
his domicile
since N.Y.Penal
512-a
rest,
“any injury
per-
state
New
rаther
[a convict’s]
to his
incarceration,
punishable
of his
because Urbano
son
Jersey.
residing
voluntarily
manner as' if he
sentenced or
were not
guidance
convicted.” Absent further
from
thing,
entirely clear
For one
is not
matter,
York courts on this
511 to
that New York
would hesitate to
inmates access to
by persons
sentences
bar suits
.injuries
the courts for redress of tortious
Jones,
Compare Jones v.
in other states.
persons
to their
basis of an out-
aff'd,
App.Div.
292 N.Y.S.
dated
law con-
inscrutable common
(1937), with