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451 F2d 1020 Tolbert v. Bragan

451 F.2d 1020

George TOLBERT, Jr., Petitioner-Appellant,
v.
Warden BRAGAN et al., Respondents-Appellees.

No. 71-2537 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Nov. 24, 1971.

George Tolbert, Jr., pro se.

Before GEWIN, GOLDBERG, and DYER, Circuit Judges.

PER CURIAM:

1

George Tolbert, Jr., appeals from the district court's denial of leave to file his Civil Rights1 complaint in forma pauperis without requiring any responsive pleading of the defendants. We reverse and remand.

2

Tolbert is presently serving a sentence in a federal prison. He alleges that he was taken from there to the Jefferson County, Alabama, jail on a writ of habeas corpus ad prosequendum to answer state criminal charges against him. After disposition of these charges and while awaiting transportation back to federal prison, Tolbert alleges that five jailers beat him severely about the head and body with blackjacks, leaving him badly injured. He alleges that the beating was done under color of state law and racially motivated. Tolbert alleges that the white jailers beat him, a black man, "for sheer sport and/or to satisfy their racist egos."

3

The district court held that these are "merely allegations of assault and battery and do not involve federal constitutional questions. These are matters which, if true, are within the province of prison officials or state courts of the State of Alabama."

4

We do not agree. Tolbert has alleged more than a mere matter of prison administration or of state law. Severe physical abuse of prisoners by their keepers without cause or provocation is actionable under the Civil Rights Act. See Lowe v. Warden, 5 Cir. 1971, 450 F.2d 9; Collum v. Butler, 7 Cir. 1970, 421 F.2d 1257; Allison v. California Adult Authority, 9 Cir. 1969, 419 F.2d 822; Wiltsie v. California Department of Corrections, 9 Cir. 1968, 406 F.2d 515.

5

The order of the district court denying Tolbert's motion for leave to file his complaint in forma pauperis is reversed and the cause is remanded for further appropriate proceedings.

6

Reversed and remanded.

*

Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I

1

42 U.S.C. Sec. 1981 et seq