Marts v. Hines

• Decision Date: 18 July 1997
• Docket Number: No. 94-30513,94-30513
• Citation: 117 F.3d 1504
• Parties: Sidney MARTS, Plaintiff-Appellant, v. Phillip HINES, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1504

117 F.3d 1504

Sidney MARTS, Plaintiff-Appellant, v. Phillip HINES, et al., Defendants-Appellees.

No. 94-30513.

United States Court of Appeals, Fifth Circuit.

July 18, 1997.

Sidney Marts, Cotton Port, LA, pro se.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, and WISDOM, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

POLITZ, Chief Judge:

We have taken this case en banc to resolve relevant conflicting circuit precedents, to continue our development of procedures to address and dispose appropriately of a continually burgeoning prisoner pro se docket, both at the trial and appellate levels, ¹ and to note an appropriate awareness of the intervening Prison Litigation Reform Act of 1995. ²

Background

The facts concerning the appeal by Sidney Marts of his 42 U.S.C. § 1983 complaint against an assistant district attorney for Orleans Parish, Louisiana, a public defender, and a private attorney representing a codefendant in a state court criminal action, are set forth in the panel opinion. ³ Marts' complaint implicated the integrity of the state court criminal proceeding, thus requiring the district court to make a threshold determination whether his action was not frivolous and justified the retention of federal jurisdiction. ⁴ The trial court dismissed without prejudice the claim for money damages against the private counsel and public defender because they were not state actors, and that against the prosecutor on the basis of absolute immunity. Finding no factual basis for the conspiracy charge it was dismissed as frivolous, also without prejudice. The panel modified the dismissals to be with prejudice, except for the conspiracy claim, and affirmed the trial court. We determined that because of conflicting circuit precedents it was necessary to revisit this issue en banc.

Analysis

Once again we consider the application of limited judicial resources to an ever increasing number of prisoner pro se filings. Our task, simply stated, is to implement procedures which will aid in the separation of the wheat from the chaff in such filings as early in the judicial process as is possible, in an effort to ensure that judicial resources will not be wasted and that the meritorious claims may receive the timely attention and disposition warranted.

The rule that the in limine dismissals of actions by the district court generally are to be with prejudice ⁵ particularly fits dismissals under the former 28 U.S.C. § 1915(d), now a part of 28 U.S.C. § 1915(e)(2). ⁶ Dismissals under the in forma pauperis statute are in a class of their own, acting not as dismissals on the merits but, rather, as denials of in forma pauperis status. ⁷ Typically, but not exclusively, such dismissals may serve as res judicata for subsequent in forma pauperis filings, but they effect no prejudice to the subsequent filing of a fee-paid complaint making the same allegations. ⁸ Exceptions included complaints containing claims which, on their face, were subject to an obvious meritorious defense, ⁹ or instances in which the plaintiff was given an opportunity to expound on the factual allegations by a Watson questionnaire or a Spears hearing and could not assert a claim with an arguable factual basis, ¹⁰ or claims without an arguable basis in law. ¹¹ On en banc reconsideration, considering the distinct features of such in forma pauperis proceedings, we now hold that dismissals as frivolous or malicious should be deemed to be dismissals with prejudice unless the district court specifically dismisses without prejudice. When the trial court dismisses without prejudice it is expected that the court will assign reasons so that our appellate review of the trial court's exercise of discretion may be performed properly. Unexplained dismissals without prejudice will necessitate a remand.

We reserve for another day and an appropriate appeal the question of the full application of this rule to the expanded bases for denial of in forma pauperis status specified in the Prison Litigation Reform Act.

In reaching today's decision we have determined and now hold that in cases involving dismissals as frivolous or malicious under the in forma pauperis statute, in which the defendant has not been served and was, therefore, not before the trial court and is not before the appellate court, the appellate court, notwithstanding, has the authority to change a district court judgment dismissing the claims without prejudice to one dismissing with prejudice, even though there is no cross-appeal by the obviously non-present "appellee." This limited exception is the product of our effort to make effective the prudential rule announced herein.

Consistent with today's holding we must now vacate and remand this action to the district court for entry of an order of dismissal with prejudice except as relates to the conspiracy claim and for such further proceedings as may be deemed appropriate.

VACATED and REMANDED.

GARWOOD, Circuit Judge, with whom KING, HIGGINBOTHAM, SMITH, DUHE EMILIO M. GARZA, BENAVIDES and DENNIS, Circuit Judges, join, dissenting:

I respectfully dissent from this Court's sua sponte action, taken where only the plaintiff has appealed, changing the district court's judgment of dismissal without prejudice to one of dismissal with prejudice. I likewise dissent from the majority's conclusory announcement that in all pre-service dismissals without prejudice of in forma pauperis suits where the plaintiff alone appeals, this Court will determine whether the dismissal could properly have been with, rather than without, prejudice and will modify the judgment accordingly. ¹

The Court provides no explanation, justification, or authority for this action, and does not even tip its hat to the Federal Rules or the relevant jurisprudence. Its decision hence appears to be more an exercise of will than of judgment.

Some sixty years ago, just before the Federal Rules went into effect, the Supreme Court had occasion to review a decision of the Eighth Circuit which had modified in a manner favorable to the appellee a judgment of the district court, despite the absence of any cross-appeal. The Supreme Court reversed the Eighth Circuit in a unanimous opinion by Justice Cardozo. Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 57 S.Ct. 325, 81 L.Ed. 593 (1937). The opinion begins by stating the question before the Supreme Court: "The power of an appellate court to modify a decree in equity for the benefit of an appellee in the absence of a cross-appeal is here to be admeasured." Id. at 187, 57 S.Ct. at 326 (emphasis added). The Court went on to hold that the appellate court had no such power, stating:

"Without a cross-appeal, an appellee may 'urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.' United States v. American Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed. 1087 [1924]. What he may not do in the absence of a cross-appeal is to 'attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below.'

Ibid. The rule is inveterate and certain." Id. at 190-91, 57 S.Ct. at 327-28. ²

The Supreme Court did not suggest that the Eighth Circuit had abused its discretion or that the circumstances were not sufficiently exceptional to justify its action, but rather held that the Eighth Circuit simply did not have the "power " to do what it did "in the absence of a cross-appeal."

Yet this Court now, in violation of the "inveterate and certain" rule of Morley, does just what the Supreme Court held the Eighth Circuit lacked the power to do. ³

I.

Over the years, decisions of the courts of appeals have divided on whether the Morley rule requiring a cross-appeal in order to modify the judgment to enlarge the appellee's rights thereunder, or diminish those of the appellant, is a rule governing the power or jurisdiction of the appellate court or is rather a rule of practice as to which exceptions may be made on a case by case basis in highly unusual and compelling circumstances. A representative sample of cases from other circuits holding that the cross-appeal requirement is one governing the power or jurisdiction of the appellate court includes the following: E.F. Operating Corp. v. American Buildings, 993 F.2d 1046, 1049 & n. 1 (3d Cir.), cert. denied, 510 U.S. 868, 114 S.Ct. 193, 126 L.Ed.2d 151 (1993); Francis v. Clark Equipment Co., 993 F.2d 545, 552-53 (6th Cir.1993); New Castle County v. Hartford Acc. & Indem. Co., 933 F.2d 1162, 1206 (3d Cir.1991); Rollins v. Metropolitan Life Ins. Co., 912 F.2d 911, 917 (7th Cir.1990); Young Radiator Co. v. Celotex Corp., 881 F.2d 1408, 1415-17 (7th Cir.1989); Broth. of Maintenance Employees v. St. Johnsbury & Lamoille, 806 F.2d 14, 15-16 (2d Cir.1986) (at least where no cross-appeal by any party); Benson v. Armontrout, 767 F.2d 454 455 (8th Cir.1985); Savage v. Cache Valley Dairy Ass'n, 737 F.2d 887, 888-89 (10th Cir.1984); Securities and Exchange Commission v. Youmans, 729 F.2d 413, 415 (6th Cir.1984) (citing Morley); Martin v. Hamil, 608 F.2d 725, 730-31 (7th Cir.1979) (citing Morley); Zapico v. Bucyrus-Erie Co., 579 F.2d 714, 725-26 (2d Cir.1978); Gomez v. Wilson, 477 F.2d 411, 414 n. 10 (D.C.Cir.1973); Whitehead v. American Security and Trust Company, 285 F.2d 282, 285-86 (D.C.Cir.1960). Some of the cases from other circuits which treat the absence of a cross-appeal as rule of practice which can be dispensed with in certain rare circumstances include the following. United States v. Tabor Court Realty...