Treatment trajectory · 1982 → 2026 · click a year to view as-of
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Top citers, strongest first. 50 distinct citers.
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discussed
Cited as authority (rule)
Samuel Harris v. Sheriff Heath Jackson
Additionally, 28 U.S.C. § 1915 (a) provides that, “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” In making this determination as to good faith, a court must use an objective standard, such as whether the appeal is “frivolous,” Coppedge v. United States, 369 U.S. 438, 445 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam);1 see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032…
discussed
Cited as authority (rule)
Xavier Jett v. Johnny McNeal
Ed. 2d 21 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam);1 see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
discussed
Cited as authority (rule)
Draper Frank Woodyard v. Judge Jody Bishop, et al.
Ed. 2d 21 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam);1 see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
discussed
Cited as authority (rule)
Tekeela A. McCaskill v. Office of the Circuit Clerk for the 13th Judicial Circuit
Ed. 2d 21 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam);1 see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
discussed
Cited as authority (rule)
Petty v. Peters
Ed. 2d 21 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam);1 see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
discussed
Cited as authority (rule)
Bryant v. Toney
Ed. 2d 21 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam);2 see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
discussed
Cited as authority (rule)
Parker v. Hetrick
Ed. 2d 21 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam);1 see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
discussed
Cited as authority (rule)
Horton v. Gilchrist
Ed. 2d 21 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam);1 see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
discussed
Cited as authority (rule)
TAYLOR v. KEMP
Coppedge v. United States, 369 U.S. 438, 444-45 (1962); Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982). 1 Based on this dismissal, it is possible that Plaintiff’s motion to proceed in forma pauperis on appeal could be denied as moot.
cited
Cited as authority (rule)
TAYLOR v. WARD
Coppedge v. United States, 369 U.S. 438, 444-45 (1962); Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982).
discussed
Cited as authority (rule)
Smith v. United States of America (INMATE 3)
(2×)
also: Cited "see, e.g."
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION MICHAEL SMITH, ) ) Petitioner, ) ) CIVIL ACTION NO. v. ) 2:17cv270-MHT ) (WO) UNITED STATES OF AMERICA, ) ) Respondent. ) ORDER This cause is now before the court on the petitioner's notice of appeal (doc. no. 28), which the court is treating as a motion to proceed on appeal in forma pauperis. 28 U.S.C. § 1915 (a)(3) provides that "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." In making this determination as to good fait…
discussed
Cited as authority (rule)
Thomas v. North Carolina Mutual Insurance Life Insurance Company
Ed. 2d 21 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam);1 see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
cited
Cited "see"
Silas Martin v. John Hamm, et al.
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Robert James Crenshaw v. Darrly Ellis, et al.
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Joiner v. Crow (INMATE 2)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Grady v. White (INMATE 3)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Ware v. United States of America (INMATE 3)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Marshall v. United States of America (INMATE 3)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Carthen v. United States of America (INMATE 3)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Davis v. Gordy (INMATE 3)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Boone v. Price (INMATE 3)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Boone v. Price (INMATE 3)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Ryles v. Dunn (INMATE 3)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Horton v. Hood (INMATE 3)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Allen v. Bolling (INMATE 3)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Staton v. Estes (INMATE 3)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Jones v. Nolin (INMATE 1)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982).
cited
Cited "see"
Cobble v. Cobb County District Attorney (INMATE 2)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
cited
Cited "see"
Bowman v. United States of America (INMATE 3)
See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
discussed
Cited "see, e.g."
Murphy v. Alabama Mental Health Authority (MAG+)
(2×)
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION ROSIE LEE MURPHY, ) ) Plaintiff, ) ) CIVIL ACTION NO. v. ) 2:25cv395-MHT ) (WO) ALABAMA MENTAL HEALTH ) AUTHORITY, et al., ) ) Defendants. ) ORDER This cause is now before the court on plaintiff's motion to proceed on appeal in forma pauperis (Doc. 30). 28 U.S.C. § 1915 (a)(3) provides that, “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” In making this determination as to good faith, a court must use an objective stand…
discussed
Cited "see, e.g."
Murphy v. Alabama Mental Health Authority (MAG+)
(2×)
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION ROSIE LEE MURPHY, ) ) Plaintiff, ) ) CIVIL ACTION NO. v. ) 2:25cv396-MHT ) (WO) ALABAMA MENTAL HEALTH ) AUTHORITY, et al., ) ) Defendants. ) ORDER This cause is now before the court on plaintiff's notice of appeal (Doc. 36), which the court is treating as a motion to proceed on appeal in forma pauperis. 28 U.S.C. § 1915 (a) provides that, "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." In making this determination as to goo…
discussed
Cited "see, e.g."
Pugh v. Cleburne County, Alabama(MAG+)
(2×)
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION DEVIN BRANDIS PUGH, ) ) Plaintiff, ) ) CIVIL ACTION NO. v. ) 2:25cv29-MHT ) (WO) CLEBURNE COUNTY, ALABAMA, ) ) Defendant. ) ORDER This cause is now before the court on plaintiff's notice of appeal (Doc. 20), which the court is treating as a motion to proceed on appeal in forma pauperis. 28 U.S.C. § 1915 (a) provides that, “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” In making this determination as to good faith, a co…
discussed
Cited "see, e.g."
Pugh v. Calhoun County, Alabama(MAG+)
(2×)
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION DEVIN BRANDIS PUGH, ) ) Plaintiff, ) ) CIVIL ACTION NO. v. ) 2:25cv21-MHT ) (WO) CALHOUN COUNTY, ALABAMA, ) ) Defendant. ) ORDER This cause is now before the court on plaintiff's notice of appeal (Doc. 21), which the court is treating as a motion to proceed on appeal in forma pauperis. 28 U.S.C. § 1915 (a) provides that, “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” In making this determination as to good faith, a cou…
discussed
Cited "see, e.g."
Pugh v. Clarke County, Alabama(MAG+)
(2×)
See id. at 5. of this case, the court treats his appeal notice as containing a motion to proceed on appeal in forma pauperis. 28 U.S.C. § 1915 (a) provides that, “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” In making this determination as to good faith, a court must use an objective standard, such as whether the appeal is “frivolous,” Coppedge v. United States, 369 U.S. 438, 445 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curia…
discussed
Cited "see, e.g."
J & J Properties, LLC v. Glenn (MAG+)
(2×)
Glenn's motion to proceed on appeal in forma pauperis (Doc. 24). 28 U.S.C. § 1915 (a) provides that, “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” In making this determination as to good faith, a court must use an objective standard, such as whether the appeal is “frivolous,” Coppedge v. United States, 369 U.S. 438, 445 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam); see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1…
discussed
Cited "see, e.g."
Daniel v. Alabama Crime Victims Compensation (MAG+)
(2×)
DANIEL, ) ) Plaintiff, ) ) CIVIL ACTION NO. v. ) 2:23cv618-MHT ) (WO) ALABAMA CRIME VICTIMS ) COMPENSATION and DIR. ) EVERETTE, Ala. Crime ) Victims Attorney, ) ) Defendants. ) ORDER This cause is now before the court on plaintiff's notice of appeal (Doc. 27). 28 U.S.C. § 1915 (a) provides that, “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” In making this determination as to good faith, a court must use an objective standard, such as whether the appeal is “frivolous,” Coppedge v. United States, 369 U.S. 438, …
discussed
Cited "see, e.g."
Daniels v. Laster (INMATE 1)
(2×)
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION DERRICK LAWAYNE DANIELS, ) ) Plaintiff, ) ) CIVIL ACTION NO. v. ) 2:23cv517-MHT ) (WO) CAPTAIN LASTER, et al., ) ) Defendants. ) ORDER This cause is now before the court on plaintiff's notice of appeal (Doc. 18), which the court is treating as a motion to proceed on appeal in forma pauperis. 28 U.S.C. § 1915 (a) provides that, “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” In making this determination as to good faith,…
discussed
Cited "see, e.g."
McMeans v. Butler (INMATE 4)
(2×)
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION THOMAS KENYON McMEANS, ) ) Petitioner, ) ) CIVIL ACTION NO. v. ) 2:23cv332-MHT ) (WO) REOSHA BUTLER, ) Correctional Warden, III, ) et al., ) ) Respondents. ) ORDER This cause is now before the court on the petitioner's notice of appeal (Doc. 40), which the court is treating as a motion to proceed on appeal in forma pauperis. 28 U.S.C. § 1915 (a)(3) provides that “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” In makin…
discussed
Cited "see, e.g."
Jones v. Morgan (INMATE 4)
(2×)
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION GLENN JONES, ) ) Petitioner, ) ) CIVIL ACTION NO. v. ) 1:24cv382-MHT ) (WO) PHYLLIS MORGAN, Warden ) III, ) ) Respondent. ) ORDER This cause is now before the court on the petitioner's notice of appeal (Doc. 12), which the court is treating as a motion to proceed on appeal in forma pauperis. 28 U.S.C. § 1915 (a)(3) provides that “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” In making this determination as to good fa…
cited
Cited "see, e.g."
Currington v. Bynum (INMATE 3)
Thompson UNITED STATES DISTRICT JUDGE B May 15, 1981) (per curiam); see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
discussed
Cited "see, e.g."
Phyfier v. United States of America (INMATE 3)
(2×)
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION CYRUS PHYFIER, ) ) Petitioner, ) ) CIVIL ACTION NO. v. ) 2:21cv480-MHT ) (WO) UNITED STATES OF AMERICA, ) ) Respondent. ) ORDER This cause is now before the court on the petitioner's motion to proceed on appeal in forma pauperis. 28 U.S.C. § 1915 (a)(3) provides that "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." In making this determination as to good faith, a court must use an objective standard, such as whether the ap…
discussed
Cited "see, e.g."
Oliver v. Ward (INMATE 4)
(2×)
In making this determination as to good faith, a court must use an objective standard, such as whether the appeal is “frivolous,” Coppedge v. United States, 369 U.S. 438, 445 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam); see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
discussed
Cited "see, e.g."
Brown v. Taylor (INMATE 1)
(2×)
In making this determination as to good faith, a court must use an objective standard, such as whether the appeal is “frivolous,” Coppedge v. United States, 369 U.S. 438, 445 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam); see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
discussed
Cited "see, e.g."
Smith v. Ivey (MAG+)
(2×)
In making this determination as to good faith, a court must use an objective standard, such as whether the appeal is “frivolous,” Coppedge v. United States, 369 U.S. 438, 445 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam); see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
discussed
Cited "see, e.g."
Jacoby v. Hamm (INMATE 4)
(2×)
In making this determination as to good faith, a court must use an objective standard, such as whether the appeal is "frivolous," Coppedge v. United States, 369 U.S. 438, 445 (1962), or "has no substantive merit." United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam); see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
discussed
Cited "see, e.g."
Reed v. Strickland (MAG+)
(2×)
STRICKLAND, II, ) et al., ) ) Defendants. ) ORDER This cause is now before the court on plaintiff's motion for permission to proceed on appeal in forma pauperis. 28 U.S.C. § 1915 (a) provides that, "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." In making this determination as to good faith, a court must use an objective standard, such as whether the appeal is "frivolous," Coppedge v. United States, 369 U.S. 438, 445 (1962), or "has no substantive merit." United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B …
cited
Cited "see, e.g."
Green v. Zeh (INMATE 1)
See, e.g., Rudolph v. Allen, 666 F.2d 519 (11th Cir. 1982).
discussed
Cited "see, e.g."
Kister v. Wynn (INMATE 1)
(2×)
In making this determination as to good faith, a court must use an objective standard, such as whether the appeal is "frivolous," Coppedge v. United States, 369 U.S. 438, 445 (1962), or "has no substantive merit." United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam); see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
discussed
Cited "see, e.g."
United States v. $2,202.00 In United States Currency (MAG+)
(2×)
In making this determination as to good faith, a court must use an objective standard, such as whether the appeal is "frivolous," Coppedge v. United States, 369 U.S. 438, 445 (1962), or "has no substantive merit." United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam); see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981).
discussed
Cited "see, e.g."
Stovall v. Files (INMATE3)
(2×)
MARSHALL, ) the Attorney General of ) the State of Alabama, ) ) Respondents. ) ORDER This cause is now before the court on the petitioner's notice of appeal (Doc. 28), which the court is treating as a motion to proceed on appeal in forma pauperis. 28 U.S.C. § 1915 (a)(3) provides that "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." In making this determination as to good faith, a court must use an objective standard, such as whether the appeal is "frivolous," Coppedge v. United States, 369 U.S. 438, 445 (1962), or "h…
Retrieving the full opinion text from the archive…
Robert L. RUDOLPH, Plaintiff,
v.
Walter L. ALLEN, Defendant
v.
Walter L. ALLEN, Defendant
82-7002.
Court of Appeals for the Eleventh Circuit.
Jan 22, 1982.
Robert L. Rudolph, pro se., Rushton, Stakely, Johnston & Garrett, Thomas H. Keene, Montgomery, Ala., for defendant.
Tjoflat, Vance, Clark.
Cited by 91 opinions | Published
Reporter's Syllabus editorial summary, not part of the Court's opinion
Robert L. Rudolph, pro se.
Rushton, Stakely, Johnston & Garrett, Thomas H. Keene, Montgomery, Ala., for defendant.
Appeal from the United States District Court for the Middle District of Alabama.
Before TJOFLAT, VANCE, and CLARK, Circuit Judges.
Lead Opinion
BY THE COURT:
Robert Rudolph is a prisoner of the State of Alabama, serving sentences totaling thirty-five years following his 1974 conviction in the Circuit Court of Montgomery, Alabama, for crimes against nature and for second degree murder. In 1980 he instituted this action in the district court[1] against Walter Allen, his court-appointed counsel in the state criminal proceedings, seeking damages under 42 U.S.C. § 1983 for ineffective assistance of counsel.
The court dismissed the action under the doctrine of res judicata; in 1977, it had dismissed an identical § 1983 suit by Rudolph against Allen[2] from which Rudolph took no appeal. In the alternative, the court reiterated its holding in the first action that a § 1983 suit against appointed counsel must fail for lack of state action. United States ex rel. Simmons v. Zibilich, 542 F.2d 259 (5th Cir. 1976); O’Brien v. Colbath, 465 F.2d 358 (5th Cir. 1972).
Rudolph’s application to the district court for leave to appeal its order in forma pauperis was denied and his subsequent application to this court is before us. Because the district court’s order clearly is in accord with the decisions of this court, Rudolph’s appeal is frivolous. Therefore, we deny his application to proceed in forma pauperis. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
IT IS ORDERED that the petitioner’s pro se application for leave to appeal in forma pauperis is DENIED.
1
Civil Action No. 80-426-N.
2
Civil Action No. 77-258-N.
Dissent
CLARK, Circuit Judge,
dissenting:
Because I disagree with the conclusion of the district court and the majority that Rudolph’s appeal is not taken in “good faith,” within the meaning of 28 U.S.C. § 1915(a) as construed in Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), I would grant the motion so that Rudolph’s appeal might be perfected. We agree that the complaint does not state a claim for which relief can be granted, insofar as it is construed solely as a damages claim against his former attorney under § 1983, and that to this extent an appeal on that issue would be frivolous and would not justify our granting the motion. Williams v. Rhoden, 629 F.2d 1099, 1102 (5th Cir. 1980). But considering Rudolph’s[*521] pro se complaint with the liberality with which we must regard such pleadings, I cannot say that it appears beyond doubt that he can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint alleges that the assistance rendered by Rudolph’s counsel was so inadequate as to subject him to loss of liberty without that degree of due process embodied in the right to counsel. Although claims of attorney malpractice will not lie under § 1983, this does not foreclose relief under the habeas corpus statute, 28 U.S.C. § 2254, if the prisoner is otherwise entitled to such relief. Courtney v. Reeves, 635 F.2d 326, 330 (5th Cir. 1981). I believe the lower court erred in regarding Rudolph’s complaint solely as an action for damages in constitutional tort and that it should have considered the complaint as a petition for habeas corpus. The liberality which must accompany consideration of prisoner pro se complaints requires no less. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), quoting Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972), and Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957). See, e.g., Taylor v. Gibson, 529 F.2d 709, 714 (5th Cir. 1976).
“The Court’s core concern has been to ensure that, whatever procedure a district court employs, the procedure is such as to assure that prisoners’ claims receive fair, adequate and meaningful consideration.” Williams v. Rhoden, 629 F.2d 1099, 1104 (5th Cir. 1980). This petitioner has twice now attempted to get the federal courts to consider the adequacy of assistance rendered by his counsel. The majority denies the petitioner that fair, adequate and meaningful consideration which justice and precedent require.