Robert F. Urbano v. News Syndicate Co., Inc. , 358 F.2d 145 ( 1966 )

HAYS, Circuit Judge:

Plaintiff in this libel action moves for leave to proceed in forma pawperis and for assignment of counsel in connection with an appeal from an order dismissing his complaint. We grant the motion for leave to proceed on the appeal in forma pauperis and at the same time reverse the order from which the appeal is taken. Our action makes it unnecessary for plaintiff to have counsel assigned for the appeal:

Plaintiff is incarcerated in the New Jersey State Prison at Trenton under a sentence of life imprisonment. He has filed a complaint alleging that the defendant has libeled him and seeking damages for the libel.

The district court granted defendant’s motion to dismiss the complaint on the ground of plaintiff’s incapacity to sue. The district court based its action on New York Penal Law § 511(1) which provides :

“A person sentenced to imprisonment for life is thereafter deemed civilly dead.”

Even if the district court was right in holding that incapacity to sue is a necessary incident of the concept of civil death, it was error to apply the law of New York rather than the law of plaintiff’s domicile as required by Federal Rules of Civil Procedure, Rule 17(b). There was no showing that under the law of his domicile plaintiff was incapable of suing.

On the merits we are of the opinion, as was the district court, that the complaint is not so clearly frivolous as to justify dismissal “at this stage of the proceeding.”

Application, for leave to proceed in forma pauperis granted; application for assignment of counsel denied; order reversed and case remanded to the district court with direction to take jurisdiction of the action.