Opinion
No. 6496.
November 21, 1960.
William P. DeMoulin, Denver, Colo., for appellant.
Ruth C. Streeter, Asst. U.S. Atty., Albuquerque, N.M. (James A. Borland, U.S. Atty., Albuquerque, N.M., was with her on the brief), for appellee.
Before BRATTON, PICKETT and BREITENSTEIN, Circuit Judges.
Robert C. Sanders, while serving a sentence at the Federal Correctional Institution at La Tuna, Texas, brought this replevin action against the United States Marshal for the District of New Mexico seeking the return to him of personal property which included clothing and money in excess of $3,000. The petition is inartfully drawn and in many respects is incomplete, but in essence it alleges that the Marshal unlawfully took from the plaintiff the described articles which are now in his possession.
The trial court permitted the petition to be docketed in forma pauperis and immediately dismissed it without a hearing or service upon the Marshal, on the grounds that it was "frivolous and without merit." It may be that the action is frivolous and without merit and it is quite likely that the district judge had personal knowledge of facts which would sustain that conclusion. There is, however, nothing in the record to that effect and the allegations in the petition must be taken as true. The order of dismissal is reversed and the case remanded for further proceedings.