ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. D.C. Civil Action No. 74-279.
Van Dusen, Gibbons and Hunter, Circuit Judges
In this case, a state prisoner who had been committed to a Pennsylvania mental hospital filed a petition for a writ of habeas corpus in the district court seeking to challenge his confinement and the commitment provisions of § 411 of the Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 P.S. § 4411. The district court refused to permit petitioner to proceed in forma pauperis. Unfortunately, because of the posture in which this case has arrived before us, the only issue we may consider is the proper construction of 28 U.S.C. § 1915(a).*fn1
The case first came before this court on August 22, 1974 on petitioner's motion for leave to proceed in forma pauperis. Since the affidavit established to the satisfaction of the panel that petitioner was unable to pay costs or to give security therefor, such leave was granted so as to enable him to prosecute his appeal. At the same time, recognizing the serious and complex issues raised by the petition for a writ of habeas corpus, this court appointed counsel. 18 U.S.C. § 3006A(g). Thereafter, the Mental Patient's Civil Liberties Project of Philadelphia was granted leave to file a brief as amicus curiae. Later, when the case was assigned to this panel for consideration on its merits, we reviewed the record and discovered that the district court had never acted upon the merits of the petition. Instead, the district court had merely entered an order denying petitioner's motion for leave to proceed in the district court in forma pauperis. We reverse and remand for further proceedings.
In denying the motion the district court referred to Ward v. Werner, 61 F.R.D. 639 (M.D. Pa. 1974), in which the same judge granted leave to proceed in forma pauperis to a prisoner who had $7.00 in his prison account but denied in forma pauperis to two prisoners who had assets of $65.00 and $50.00 respectively. In the instant case the record establishes that petitioner had $50.07 in his account at Farview State Hospital at the time he sought to file his petition, and that every two weeks his aged mother sent him an additional $15.00.
Without commenting on the appropriateness of the rulings in Ward v. Werner, supra, we hold that in this case (1) the court erred in refusing to allow petitioner leave, pursuant to 28 U.S.C. § 1915(a), to proceed without prepayment of fees and costs or security therefor, and, (2) the court should have appointed an attorney to represent petitioner pursuant to 18 U.S.C. § 3006A(g).
Since there is no district court record, the description of the case which follows is set forth in reliance on representations in the several briefs filed in this court. Petitioner was sentenced to a term of life imprisonment in 1962 upon a plea of guilty to a felony-murder. He was imprisoned initially at Graterford, and in 1965, was transferred to the State Correctional Institution at Pittsburgh. In 1967 he was transferred to Farview State Hospital upon his own request for commitment. In 1971 he was returned to the State Correctional Institution at Pittsburgh where he was confined until May 10, 1972.
Following the filing of a petition for commitment by the prison's deputy superintendent, a hearing was held on April 27, 1972 in the Luzerne County Court of Common Pleas. Commonwealth v. Souder, No. 1813, March Term, 1972, Court of Common Pleas, Luzerne County, Pennsylvania. Petitioner was given no notice of this hearing, nor was he present. A notice was sent to his mother, and a public defender was provided by the Commonwealth to represent him. The state presented the testimony of a psychiatrist who treated Souder at the State Correctional Institute, the same doctor's psychiatric evaluation prepared on February 21, 1972, and a second evaluation prepared by another psychiatrist on March 13, 1972. Both physicians diagnosed petitioner as schizophrenic and a chronic paranoid. The court then ordered his commitment to Farview. Thereafter, Souder unsuccessfully sought habeas corpus relief in the Pennsylvania courts, and on April 10, 1974 filed a petition in the district court below.
Souder's pro se petition, though inartfully drafted as one might expect, raises serious equal protection and due process issues as to the constitutionality of § 411 of Pennsylvania's Mental Health and Mental Retardation Act of 1966.*fn2 That section governs commitment to mental health facilities of persons undergoing sentence and detained in a correctional institution. It provides that on the petition of the warden the sentencing court may adopt one of the commitment procedures set forth in § 408(b) of the Act.*fn3 With no record before us, we cannot determine precisely which of the procedures listed in § 408(b) were followed. It would appear that those which were followed were less than, or at least different from the mandatory procedures which must be followed for the involuntary civil commitment of a non-confined adult in Pennsylvania. See Dixon v. Attorney General, 325 F. Supp. 966 (M.D. Pa. 1971) (consent decree) (three-judge court).
The constitutional adequacy of the procedures, whatever they were, must be tested against an emerging body of law which has begun to place safeguards around the transfer of prisoners to mental hospitals. See South Carolina Department of Corrections, The Emerging Rights of the Confined 190-91 (1972). Without attempting a complete survey of the complex issues which are manifest in this case, we refer to the leading decision of Baxstrom v. Herold, 383 U.S. 107, 15 L. Ed. 2d 620, 86 S. Ct. 760 (1966). There the Court held that a New York statute which permitted civil commitment upon expiration of a prison sentence without the right to a trial de novo review by a jury on the question of sanity was a denial of equal protection, since the state's statutory scheme prescribed such a procedure for the civil commitment of others. The Court left open the question whether prisoners had during confinement, the same equal protection right. Since Baxstrom, several other well-reasoned federal court decisions have applied its holding in the context of prisoner transfers to mental institutions during the period of their original terms of sentence. See United States ex rel. Schuster v. Herold, 410 F.2d 1071 (2d Cir.), cert. denied, 396 U.S. 847, 24 L. Ed. 2d 96, 90 S. Ct. 81 (1969); Matthews v. Hardy, 137 U.S. App. D.C. 39, 420 F.2d 607 (1969), cert. denied, 397 U.S. 1010, 25 L. Ed. 2d 423, 90 S. Ct. 1231 (1970); Chesney v. Adams, 377 F. Supp. 887 (D. Conn. 1974).
In addition to the weighty equal protection problems, the petition presents equally serious due process issues, some of which, in the context of the involuntary civil commitment of non-confined adults, have been explored in Dixon v. Attorney General, supra; cf. Ferenc v. McGuire, 353 F. Supp. 951 (E.D. Pa. 1972); Commonwealth ex rel. DiEmilio v. Shovlin, 449 Pa. 177, 295 A.2d 320 (1972). The due process issues concerning involuntary civil commitment have been presented to the Supreme Court without a decision on the merits as yet, in Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated and remanded on other grounds, 414 U.S. 473, 94 S. Ct. 713, 38 L. Ed. 2d 661 (1974), on remand, 379 F. Supp. 1376 (E.D. Wis. 1974), vacated and remanded on other grounds, 421 U.S. 957, 95 S. Ct. 1943, 44 L. Ed. 2d 445, 43 U.S.L.W. 3600 (1975). See also Developments in the Law -- Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190, 1265-1316 (1974).
There is no question about the appropriateness of habeas corpus as a method of challenging involuntary commitment to a mental institution. United States ex rel. ...