Purporting to seek relief in the nature of mandamus, appellant sought to file in the District Court a petition in forma pauperis, supported by an appropriate affidavit of poverty.1 No answer or other pleading was filed by, and no appearance was entered for, the appellee.2 Leave to file without prepayment of costs was denied3 by the District Judge. Shortly thereafter the court granted a petition for leave to appeal in forma pauperis. No reasons were set forth for either ruling.

Clemmer, 111 U.S.App.D.C. , 295 F.2d 132, we pointed out that a remedy in the nature of mandamus is not available in the absence of specific allegations sufficient to bring the claim within the controlling conditions upon which relief may be available. Compliance with the principles there outlined is of special importance if the courts are to be asked to review the conduct of officials charged with the administration of the Lorton Reformatory.

Here, however, the appellant alleged he had filed a petition with the late Commissioner Karrick complaining that he had been subjected to cruel and unusual punishment, and because of doing so, had been placed in solitary confinement. Clearly, the appellant was to be permitted to file such a petition.4

Moreover, he alleged that because he wrote a letter of protest to the Director, appellee herein, prison officials immediately began persecuring him and placed him a solitary confinement on a false charge of lying about the officers and officials. Thereafter he was placed on 'special treatment' where a prisoner 'gets cold food any very little recreation' and no medical treatment if the officials inform the doctor 'they are against him for any reason.'

Appellant's action by itself in seeking administrative relief through the Director and the District Commissioner surely may not properly predicate the solitary confinement and other punitive treatment of which the prisoner complains. If his punishment could be shown to be attributable to that action, appellant is entitled to an order so fashioned as to provide adequate relief.5

It is our view that the District Court erred in denying leave to file the petition. Though inartfully prepared by a nearly illiterate prisoner, unaided by counsel, we have noted in the petition two important facets which distinguish appellant's claim from certain others6 which have come to our notice. The allegations we have discussed stand wholly uncontroverted on this record.

Accordingly, the case will be remanded to the District Court with directions: (1) that appellant's petition be filed with leave to be granted to amend within a reasonable time in such respects as will exhibit the basis for appellant's claim; (2) that counsel be appointed to assist the appellant; and (3) that such hearing be afforded as may be required in view of such pleadings as may be filed.

Reversed.

EDGERTON, Circuit Judge (concurring in the result).

Appellant is a nearly illiterate prisoner in the District of Columbia jail. His ineptly drawn petition pro se alleges that because his religion is 'islam' and because of an application he made to a District of Columbia Commissioner, he was kept in solitary confinement for a time and has since been denied hot food and necessary medication. I think this charge of religious persecution is sufficiently definite without amendment. In order that 'unlettered prisoners without friends or funds' may be protected, 'legalistic requirements in examining applications' should be disregarded. Darr v. Burford, 339 U.S. 200, 203, 70 S. Ct. 587, 94 L. Ed. 761.

An indigent must be allowed to proceed in forma pauperis unless the issues he raises are 'plainly frivolous'. No 'preliminary showing of any particular degree of merit' is required. Ellis v. United States, 356 U.S. 674, 78 S. Ct. 974, 2 L. Ed. 2d 1060. Ellis was a criminal case and directly determined only the right to appeal, not the right to file a petition in the District Court. But 28 U.S.C. 1915, which the Supreme Court cited, is not restricted to criminal cases or to appeals but applies to 'any suit, action or proceeding, civil or criminal, or appeal therein * * *.' It may be that the Ellis principle does not extend to the filing of complaints in all sorts of civil suits, but a recent decision of the Supreme Court leaves little room for doubt that it applies to the filing of the present petition for relief.

Smith v. Bennett, decided April 17, 1961, holds that 'to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to seu for his liberty is to deny that prisoner the equal protection of the laws' and that an indigent must therefore be allowed to file without fee a petition, which a non-indigent might file, for a writ of habeas corpus. 365 U.S. 708, 709, 81 S. Ct. 895, 6 L. Ed. 2d 39. Though the equal protection clause of the Constitution applies in terms only to the states, 'it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.' Bolling v. Sharpe, 347 U.S. 497, 500, 74 S. Ct. 693, 98 L. Ed. 884. It may follow that a federal court's refusal to file the nonfrivolous petition of an indigent in circumstances in which a non-indigent might file would deny a constitutional right. But we need not reach any constitutional question, because 28 U.S.C. 1915 covers the case.1

Appellant's petition does not speak in terms of habeas corpus but of mandamus, which was 'abolished' by F.R.Civ.P.Rule 81(b), 28 U.S.C. But 'The availability of a procedure to regain liberty lost through criminal process cannot be made contingent upon a choice of labels.' Smith v. Bennett, supra, 365 U.S. at page 712, 81 S.Ct. at page 897, 6 L. Ed. 2d 39. Although the decision in that case does 'not necessarily' apply to 'all habeas corpus or other actions involving civil rights', it does apply to 'those involving indigent convicted prisoners'. 365 U.S. at page 713, 81 S.Ct. at page 898, 6 L. Ed. 2d 39.

In holding that a man committed to a mental hospital may use habeas corpus to test his complaint that he is kept in a part of the hospital where he is assaulted by psychotic inmates, we said: 'Mandamus or injunction might also lie * * *.' Miller v. Overholser, 92 U.S.App.D.C. 110, 116, 206 F.2d 415, 421.2 We cited a Sixth Circuit decision that 'A prisoner is entitled to the writ of habeas corpus when, though lawfully in custody, he is deprived of some right to which he is lawfully entitled even in his confinement, the deprivation of which serves to make his imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits. * * * The judge is not limited to a simple remand or discharge of the prisoner, but he may remand with directions that the prisoner's retained civil rights be respected.' Coffin v. Reichard, 6 Cir., 1944, 143 F.2d 443, 445, 155 A.L.R. 143.3 The Sixth Circuit Court of Appeals directed the District Court not only to file the prisoner's petition but also to appoint counsel for him.

'It is beyond dispute that certain rights and privileges of citizenship are withdrawn from prisoners, but it has never been held that upon entering a prison one is entirely bereft of all of his civil rights and forfeits every protection of the law.' Sewell v. Pegelow, 4 Cir., 1961, 291 F.2d 196. The Supreme Court has declared that a state prison regulation requiring a prisoner's legal documents to be approved by officials before they are forwarded is invalid. Ex parte Hull, 312 U.S. 546, 549, 61 S. Ct. 640, 85 L. Ed. 1034. A prisoner is denied equal protection of the laws if officials prevent him from taking a timely appeal. Cochran v. State of Kansas, 316 U.S. 255, 62 S. Ct. 1068. 86 L. Ed. 1453; Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S. Ct. 262, 95 L. Ed. 215. This court has recognized by way of dictum that 'The Attorney General and other officers in the line of authority over penal institutions do not have the power arbitrarily to deny a prisoner communication with the outside world * * *.' Dayton v. McGranery, 92 U.S.App.D.C. 24, 25, 201 F.2d 711, 712. A district court has held that the right of access to courts is infringed by prison regulations which restrict use of law books, severely limit law study, and suppress documents addressed to courts. Bailleaux v. Holmes, D.C.D.Or., 177 F. Supp. 361. A prisoner's allegations of beating and torture have been held to state a claim under the Civil Rights Acts. Gordon v. Garrson, D.C.E.D.Ill., 77 F. Supp. 477; Siegel v. Ragan, D.C.N.D.Ill., 88 F. Supp. 996. Cf. Coleman v. Johnston, 7 Cir., 247 F.2d 273. The Court of Appeals of the Fourth Circuit has recently held that a prisoner's allegations of religious persecution state such a claim. Sewell v. Pegelow, supra. Cases denying prisoners the relief they sought have sometimes recognized that in extreme cases it should be granted. United States ex rel. Yaris v. Shaughnessy, D.C.S.D.N.Y., 112 F. Supp. 143; Nichols v. McGee, D.C.N.D.Cal., 169 F. Supp. 721, appeal dismissed 361 U.S. 6, 80 S. Ct. 90, 4 L. Ed. 2d 52; Tabor v. Hardwick, 5 Cir., 224 F.2d 526.

Any showing that appellant was guilty of conduct that might justify as discipline the treatment he says he received, and that he was disciplined for that reason only, would probably defeat his charge of religious persecution. But his petition, like the more detailed complaint in Sewell v. Pegelow, supra, alleges deprivations and hardships inflicted not for infraction of any rule but solely because of his religion. The petition, unanswered because he was not allowed to file it, says his 'prison record' is 'spotless'.

Appellee contends that his superior officers, the Commissioners of the District of Columbia, must be joined as defendants. But a Postmaster General who has issued a fraud order need not be joined as a defendant in a suit to enjoin a local postmaster from carrying out the order. The Supreme Court laid down the order. that 'the superior officer is an indispensable party if the decree granting the relief sought will require him to take action, either by exercising directly a power lodged in him or by having a subordinate exercise it for him.' Williams v. Fanning, 332 U.S. 490, 493, 68 S. Ct. 188, 92 L. Ed. 95. Because the relief sought in that case would not require the Postmaster General to take any action, his presence was not indispensable. The relief sought in this case would not require the District Commissioners to take any action, and therefore their presence is not indispensable. The Director of the Department of Corrections, although 'under the direction and control of a Commissioner', has 'full authority over such Department and all personnel assigned thereto'. Reorganization Order No.34-- Department of Corrections, D.C.Code, Supp. VIII, 1960, p. 50.

The Corporation Counsel devoted a page of his brief to attributing certain views to 'Black Muslims'. This irrelevant and prejudicial matter is not in the record and should not be in the brief. The record says nothing about 'Black Muslims' or color. It says nothing about appellant's views or associations except that his religion is 'islam.'