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Dennis BALL, Illean Ball and Dennis Ball, Jr., Appellants, v. Paul SHAPANUS, Norman Gantz, James Johnson, Detective Sergeant Smith, George Peacock, Robert Williams, Randall Miller, Martha Miller, Robert Bayer, John Thomas and William Anderson, Appellees.

No. 15931.

United States Court of Appeals Third Circuit.

Submitted Nov. 18, 1966.

Decided Dec. 8, 1966.

*374Dennis Ball, pro se.

Ervin S. Fennell, Jr., Asst. Dist. Atty., Clearfield, Pa., for appellees.

Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

In January, 1966, appellant Dennis Ball, sought to file a civil rights action against three of the above named defendants. He also asked for leave to proceed in forma pauperis and for appointment of counsel. Dennis Ball is at present serving a state sentence for burglary and larceny at the State Correctional Institution at Huntingdon, Pennsylvania. That cause was founded upon alleged illegal search and seizure by the State Police in connection with their investigation of certain charges of burglary and larceny against said appellant. The complaint was deemed frivolous by the District Court and the motion to proceed in forma pauperis and for counsel denied. The order of the Court covering this and the papers submitted by appellant were ordered filed but no service of the latter was to be allowed unless and until plaintiff provided the necessary filing fees. Ball did nothing further as to that particular complaint.

Sometime later Ball submitted the present complaint to the District Court. This has as additional parties plaintiff, Ball’s wife and son. Additional police officers and private citizens are named as defendants. The basis of the action is the same as stated in the first complaint. The District Court on March 3, 1966, held that, as disclosed by both the complaint before it and the previous one above mentioned, plaintiffs’ cause was frivolous and denied the motion to file and proceed in forma pauperis. Thereafter plaintiffs filed in this Court an application to appeal in forma pauperis. This was accompanied by an affidavit stating that plaintiffs “are poor persons with no monies with which to pay the filing fees and proceeding with their attached petition.” On April 13, 1966, we allowed the motion.

In the complaint before us plaintiffs allege illegal search of their home and seizure of property contained therein by defendants. They specifically charge inter alia that “4. The defendants did not have a search and seizure warrant. 5. The defendants did not have an arrest warrant. 6. The defendants did not have probable cause,”.

The brief of the District Attorney of Clearfield County, Pennsylvania, on behalf of the defendants does assert that the complaint is frivolous and goes on to detail alleged facts as to plaintiffs’ claim. It culminates with the statement that prior to the search of plaintiffs’ home “ * * * the State Police procured a search warrant based upon probable cause and supported by oath or affirmation.” The alleged results of the search are then related. None of all this in its present posture constitutes any evidence whatsoever.

The order of the District Court of March 4, 1966 is vacated and the case is remanded to that Court for trial on the merits.

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