438 F2d 523 Benn v. Borden's Starlac Dry Milk Product

438 F.2d 523

Hersey BENN, Appellant,
v.
BORDEN'S STARLAC DRY MILK PRODUCT et al., Appellees.

No. 24530.

United States Court of Appeals, Ninth Circuit.

February 9, 1971.

Hersey Benn, in pro. per.

Cushing, Cullinan, Hancock & Rothert, San Francisco, Cal., for appellees.

Before HAMLEY, DUNIWAY and KILKENNY, Circuit Judges.

PER CURIAM:

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1

Hersey Benn, a prisoner of the State of California, appeals from an order of the district court denying leave to file a complaint in forma pauperis pursuant to 28 U.S.C. § 1915(a). According to Benn's motion, the complaint would name, as defendant, "Borden's Starlac Dry Milk Product, et al." Benn seeks damages from the defendant by reason of illness assertedly suffered by him as a result of drinking defendant's "Starlac" milk obtained from the prison canteen. Benn alleges that harmful bacteria had been found in this milk product.

2

An order refusing to grant the privilege of proceeding in forma pauperis in a civil action must be affirmed unless it appears that the discretion vested in the district court by 28 U.S.C. § 1915(a) has been abused. Williams v. Field, 394 F. 2d 329, 332 (9th Cir. 1968).

3

It appears from Benn's motion papers that he has not, and cannot, allege facts stating a claim for damages under any head of federal jurisdiction. Accordingly the district court did not abuse its discretion in denying the motion for leave to proceed in forma pauperis.

4

Affirmed.