454 F2d 1155 Rocha v. M Sowers

454 F.2d 1155

Johnny ROCHA, Petitioner-Appellant,
Louis M. SOWERS et al., Respondents-Appellees.

No. 72-1141.

United States Court of Appeals,
Fifth Circuit.

Jan. 27, 1972.

Johnny Rocha, pro se.

Jack P. F. Gremillion, Atty. Gen., State of Louisiana, Baton Rouge, La., for respondents-appellees.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.


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Johnny Rocha has applied to this Court for leave to appeal in forma pauperis1 from the district court's peremptory denial of his motion to file a Civil Rights action2 in forma pauperis. We grant his motion and summarily remand the case for further proceedings.


In the complaint which he attempted to file in the court below, Rocha sought $10,000 damages and a mandatory injunction against the respondents, officials of the Louisiana State Prison, where he is incarcerated. He alleged that he has been denied adequate medical treatment for accidental injuries sustained in the prison, and that he is being subjected to unwarranted disciplinary action without due regard for his injuries.


The district court refused to allow the complaint to be filed, stating that it did not present a federal question, but rather one that should be adjudicated in state court. This ruling is clearly incorrect since, as Rocha stated in his pleadings below, the action is founded on 42 U.S.C. Sec. 1983 et seq. See Woolsey v. Beto, 5th Cir. 1971, 450 F.2d 321. Even if the State of Louisiana provided a remedy for the relief Rocha seeks, federal jurisdiction can be invoked prior to seeking relief in State court. Jones v. Decker, 5th Cir. 1970, 436 F.2d 954, and cases cited therein.


Accordingly, and without passing upon the merits of the allegations of the complaint, we grant Rocha's motion for leave to appeal in forma pauperis. The cause is remanded to the district court for appropriate findings and conclusions, and a trial on the merits if deemed necessary.3


28 U.S.C. Sec. 1915


42 U.S.C. Sec. 1983 et seq


In view of the ruling by this Court, we deny Rocha's motion for appointment of counsel on this appeal