448 F2d 744 Blake III v. Georgia Department of Corrections

448 F.2d 744

Joseph Willis BLAKE, III, Petitioner-Appellant,
v.
GEORGIA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.

No. 31155.

United States Court of Appeals,
Fifth Circuit.

Sept. 15, 1971.

Peter E. Rindskopf, Atlanta, Ga., Court-appointed, for petitioner-appellant.

Arthur K. Bolton, Atty. Gen., of Ga., Courtney Wilder Stanton, Asst. Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Dorothy T. Beasley, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

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1

In this case the appellant complains of the action of the district court in dismissing his complaint against the Georgia Department of Corrections and a number of individuals. The record indicates that the complaint was never served, no answers were filed and the case was dismissed as frivolous by the district court sua sponte.

2

The appellant was permitted to proceed in forma pauperis in the district court and in this court. Counsel was appointed to represent him on appeal.

3

Without passing upon the merits in any detailed respect or upon the several issues presented, we disagree with the conclusion of the district court that the case should be dismissed as frivolous. The order of the district court dismissing the case is vacated and the case is remanded.1

1

See Henderson et al. v. Sterrett et al., 447 F.2d 981 (5th Cir. 1970)