465 F2d 1403 Freeley v. United States

465 F.2d 1403

A. Robert FREELEY, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 72-1127.

United States Court of Appeals,

Fifth Circuit.

Oct. 13, 1972.

Appeal from the United States District Court for the Northern District of Georgia; Sidney O. Smith, Jr., Chief Judge.

Stanley A. Bass, New York City (Court-appointed), for petitioner-appellant.

John W. Stokes, U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.

Before TUTTLE, BELL and AINSWORTH, Circuit Judges.

PER CURIAM:

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1

A letter from appellant, a federal prisoner, to the district court was, at the election of the district court, treated as a petition for mandamus, docketed and dismissed. There was no service upon the United States nor any agent thereof and no response was required.

2

Relying on notice pleading concepts and the supervening Supreme Court decision of Haines v. Kerner, 1972, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652, appellant now urges that he was entitled to offer proof to substantiate the claims contained in the letter. We agree. Since the district court so considered it, we proceed on the assumption that appellant's letter is a complaint or pleading. Having in mind the allegations which are set forth in the letter with respect to his need for security from attack by other inmates, we cannot say with assurance that it appears beyond doubt that appellant could prove no set of facts which would entitle him to relief. This is the test of Haines v. Kerner, supra, also ininvolving a prisoner suit.

3

Vacated and remanded for further proceedings not inconsistent herewith.