449 F2d 1297 In Re James P Stump

449 F.2d 1297

In re James P. STUMP, Petitioner.

Misc. No. 509.

United States Court of Appeals, First Circuit.

October 29, 1971.

James P. Stump, pro se, on motion and brief in support thereof.

Courtland D. Perry, Asst. Atty. Gen., on brief in opposition to motion.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.


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Although the amount of money involved in this case is small, the principle is not, but is of some general importance.


Petitioner appellant, a state prisoner, formerly at large on parole, had his parole revoked under procedures that he alleges were unconstitutional. In the light of present judicial concern over parole practices generally we are not prepared to say that his 42 U.S.C. § 1983 complaint which he sought to file in the district court is frivolous on its face. Nor did the district court. That court denied him leave to proceed in forma pauperis, under 28 U.S.C. § 1915(a), on the ground that he had sufficient means, thereby requiring him to pay the $15 filing fee. Petitioner admits to having a cash credit with the warden of $78.00. He lists no outstanding debts. The warden has certified that his credit is $218. Rather than pay the fee, petitioner brings this petition for mandamus, seeking an order recognizing his right to proceed in forma pauperis.


We have previously, in other connections, held that a plaintiff, even though of small means, could reasonably be asked to some small degree to "put his money where his mouth is," it being all too easy to file suits, even with sufficient pro forma allegations, if it costs nothing whatever to do so. We are not prepared to say that the district court's requirement in this case was such an abuse of discretion as would call for mandamus on our part.


Nor would we say that the court may not inquire whether, if a prisoner has no cash credit at the moment of filing, he had disabled himself by a recent drawing on his account, and if so, for what purposes.


The petition is dismissed. This ruling is without prejudice to a renewed request in the district court for leave to proceed in forma pauperis in order to meet some larger described expense subsequently faced. Cf. Green v. Cotton Concentration Co., S.D.Tex., 1968, 294 F.Supp. 34.