Opinion · Court of Appeals for the Fifth Circuit

George Tolbert, Jr. v. Warden Bragan

George Tolbert, Jr. v. Warden Bragan, 451 F.2d 1020 (5th Cir. 1971)

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1971-11-24
Topic
general

How later courts describe this case

  • beating of a convicted federal prisoner by state jailers while in their custody to answer state criminal charges

Citator

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Cited by
33 opinions
TOLBERT v. BRAGAN,451 F.2d 1020(5th Cir. 1971)
GEORGE TOLBERT, JR., PETITIONER-APPELLANT, v. WARDEN BRAGAN ET AL.,
RESPONDENTS-APPELLEES.
No. 71-2537.
Summary Calendar.fn*
United States Court of Appeals, Fifth Circuit.
November 24, 1971.
George Tolbert, Jr., pro se.
Appeal from the United States District Court for the Northern District of Alabama.
Before GEWIN, GOLDBERG, and DYER, Circuit Judges.
PER CURIAM:
[1] George Tolbert, Jr., appeals from the district court's denial of leave to file his Civil Rights1complaintin formapauperiswithout requiring any responsive pleading of the defendants. We reverse and remand.

[2] Tolbert is presently serving a sentence in a federal prison. He alleges that he was taken from there to the Jefferson County, Alabama, jail on a writ of habeas corpus ad prosequendum to answer state criminal charges against him. After disposition of these charges and while awaiting transportation back to federal prison, Tolbert alleges that five jailers beat him severely about the head and body with blackjacks, leaving him badly injured. He alleges that the beating was done under color of state law and racially motivated. Tolbert alleges that the white jailers beat him, a black man, "for sheer sport and/or to satisfy their racist egos."

[3] The district court held that these are "merely allegations of assault and battery and do not involve federal constitutional questions. These are matters which, if true, are within the province of prison officials or state courts of the State of Alabama."

[4] We do not agree. Tolbert has alleged more than a mere matter of prison administration or of state law. Severe physical abuse of prisoners by their keepers without cause or provocation is actionable under the Civil Rights Act. See Lowe v. Warden, 5 Cir. 1971,450 F.2d 9; Collum v. Butler, 7 Cir. 1970,421 F.2d 1257; Allison v. CaliforniaPage 1021Adult Authority, 9 Cir. 1969,419 F.2d 822; Wiltsie v. California Department of Corrections, 9 Cir. 1968,406 F.2d 515.

[5] The order of the district court denying Tolbert's motion for leave to file his complaintin forma pauperisis reversed and the cause is remanded for further appropriate proceedings.

[6] Reversed and remanded.Page 1023
  1. Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir., 1970,431 F.2d 409, Part I. ↩
  2. 42 U.S.C. § 1981et seq. ↩