525 F.2d 886 (5th Cir. 1976), 75--1683, Watson v. Ault

Docket Nº:75--1683 to 75--1685.
Citation:525 F.2d 886
Party Name:James A. WATSON et al., Plaintiffs-Appellants, v. Dr. Allen L. AULT et al., Defendants-Appellees. William PURDUE, Plaintiff-Appellant, v. Dr. Allen L. AULT, Director, et al., Defendants-Appellees. William A. DURHAM, Plaintiff-Appellant, v. Oree THOMPSON et al., Defendants-Appellees.
Case Date:January 12, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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525 F.2d 886 (5th Cir. 1976)

James A. WATSON et al., Plaintiffs-Appellants,


Dr. Allen L. AULT et al., Defendants-Appellees.

William PURDUE, Plaintiff-Appellant,


Dr. Allen L. AULT, Director, et al., Defendants-Appellees.

William A. DURHAM, Plaintiff-Appellant,


Oree THOMPSON et al., Defendants-Appellees.

Nos. 75--1683 to 75--1685.

United States Court of Appeals, Fifth Circuit

January 12, 1976

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[Copyrighted Material Omitted]

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Jerry Patterson, Jackson, Ga., Alfred C. Aman, Atlanta, Ga. (Court-appointed), for plaintiffs-appellants in all cases.

Arthur K. Bolton, Atty. Gen., Lois F. Oakley, G. Thomas Davis, Asst. Attys. Gen., Richard L. Chambers, Deputy Atty. Gen., Atlanta, Ga., for defendants-appellees in all cases.

Appeal from the United States District Court for the Middle District of Georgia.

Before BELL, THORNBERRY and MORGAN, Circuit Judges.

BELL, Circuit Judge:

These appeals, consolidated for opinion purposes, are from orders of the district court denying the right to proceed in forma pauperis and dismissing as frivolous, pursuant to 28 U.S.C.A. § 1915(d), three separate pro se prisoner complaints asserted under the Civil Rights Act. 42 U.S.C.A. § 1983. Given notice pleading concepts and the extant authorities on administering in forma pauperis appeals under 28 U.S.C.A. § 1915, we hold that the dismissals were premature. Accordingly, we vacate and remand for further proceedings.


The appellants are all state prisoners in the custody of the Georgia State Board of Corrections, confined at either the Reidsville State Prison or the Georgia Diagnostic and Classification Center at Jackson. The factual claims underlying their individual causes of action and the individual and collective actions of the district court with respect to the three petitions will first be summarized.

No. 75--1683

In No. 75--1683, petitioners Watson and Patterson filed a complaint on February 20, 1975, in the Middle District of Georgia alleging a cause of action under 42 U.S.C.A. § 1983. They sought damages and equitable relief against Dr. Allen Ault, Director of the Georgia State Board of Corrections, and against Dr. James E. Ricketts, Warden of the Georgia Diagnostic and Classification Center. The basis for the complaint was that their constitutional rights had been violated by the denial of procedural due process in a transfer to solitary confinement, by subjection to allegedly inhumane conditions in the prison, and by unwilling participation in a prisoner behavior modification program. To the complaint was attached an affidavit requesting leave to proceed in forma pauperis.

No. 75--1684

In No. 75--1684, appellant Purdue filed a complaint on February 7, 1975, based on the Civil Rights Act, 42 U.S.C.A. § 1983, similarly petitioning the court to proceed in forma pauperis. The defendants in his suit were also Doctors Ault and Ricketts. The complaint alleged comparable violations of constitutional rights stemming from allegedly unbearable living conditions at the prison, and from a transfer to apparently punitive confinement without being accorded procedural due process. Appellant Purdue also attached an affidavit requesting leave to proceed in forma pauperis.

No. 75--1685

In No. 75--1685, appellant Durham originally filed his complaint in the Southern District of Georgia against various persons alleged to have violated his constitutional rights in the investigation and prosecution of the crime for which he had been imprisoned. These violations included a lack of probable cause for his arrest, an appearance in a lineup without counsel, a failure to arraign him for seventeen days after arrest, coercion into signing an involuntary confession, and an assertion that his guilty plea was involuntary. Although the nature of the asserted wrongs were such as normally

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support a writ of habeas corpus, he sought damages rather than release. The court therefore did not require exhaustion of state remedies and allowed the complaint to be filed in the Southern District. Because all the parties except Durham were residents of a county in the Middle District of Georgia, the court transferred the case to that district under 28 U.S.C.A. § 1404. Appellant Durham had also included an affidavit in forma pauperis, which was not ruled upon by the district court in the Southern District. All pleadings in the case were transferred to the Middle District of Georgia on November 22, 1974.

The Actions of the District Court

The order of the district court dismissing each complaint as frivolous under 28 U.S.C.A. § 1915(d) was essentially the same in each case, and is reproduced in the margin. 1 The apparent basis for the district court's dismissal was the lack of additional facts to support whatever claim had been presented in the original complaints, as evidenced by the failure or refusal of appellants to respond to a court questionnaire intended to develop facts. Having found the complaints to be frivolous, the district court ordered that the three complaints be filed for record purposes only and otherwise dismissed them on the day that each complaint was so filed.

All of the petitioners filed notice of appeal, requesting leave to appeal in forma pauperis from the district court's dismissal of their respective complaints. The district court filed a single order granting leave to appeal in forma pauperis to all of the petitioners 'out of an abundance of caution' because no decision by this court had previously approved the procedure that it had followed with respect to these complaints. In that order the district court amplified its reasons for using a questionnaire to ascertain whether there was any substance to the three complaints. Because none of the petitioners had returned the questionnaire, it was noted that 'the court could only proceed on its initial impression and belief that each of said complaints (was) frivolous and more than likely also malicious.'

The district court noted the difficulties faced by district courts in sifting through the large volume of pro se prisoner petitions and stated that it was considered within its discretion under 28 U.S.C.A. § 1915 to have adopted such a procedure. Quoting Jones v. Bales, N.D.Ga., 1972, 58 F.R.D. 453, aff'd, 5 Cir., 1973, 480 F.2d 805, authority was found to dismiss such complaints simultaneously with filing where the complaint and the questionnaire did not demonstrate an adequate factual basis for the asserted cause of action. 2

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Prisoner litigation

In recent years, the federal courts have assumed an increasing burden of numerous law suits by federal and state prisoners challenging the conditions of their confinement. 3 See Hines v. Askew, 5 Cir., 1975, 514 F.2d 673, and cases cited therein. For state prisoners, the normal basis for such claims is an allegation that some constitutional right has been violated. The path to the federal court-house is therefore through the cause of action granted by the Civil Rights Act, 42 U.S.C.A. § 1983. 4

While on some occasions the wrongs asserted by the prisoner are of constitutional dimension, on many occasions the complaints, if not frivolous, do not rise to the level of a denial of federal constitutional rights. See Aldisert, Judicial Expansion of Federal Jurisdiction: A Federal Judge's Thoughts on Section 1983, Comity and the Federal Caseload, 1973, Law & Social Order, 557, 573, et seq. The difficult task facing the courts is to winnow out the wheat from the unusual amount of chaff necessarily presented in a system which fosters pro se litigation. This case results from the efforts of one federal district court to respond to that problem.

Section 1915

Aside from the willingness of courts to review conditions of confinement, a second statutory provision has in tandem helped cause the increase in prisoner litigation. This is the ability under 28 U.S.C.A. § 1915 to commence an action in forma pauperis without prepayment of fees and costs for security, where so authorized by a district court. 5 The difficulty in this case is the confusion arising from the district court's treatment of two separate subsections of that provision. Subsection (a) of § 1915 authorizes the filing of a suit in forma pauperis, by a person who makes an affidavit that he is 'unable to pay . . . costs or give security therefor.' Subsection (d) of § 1915 states that the court 'may dismiss the case if the allegation

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of poverty is untrue, or if satisfied that the action is frivolous or malicious.' Under Subsection (a), the commencement or filing of the suit depends solely on whether the affiant is economically eligible. The only determination to be made by the court under § 1915(a), therefore, is whether the statements in the affidavit satisfy the requirements of poverty. See Campbell v. Beto, 5 Cir., 1972, 460 F.2d 765, 768; Lockhart v. D'Urso, 3 Cir., 1969, 408 F.2d 354.

Section 1915(d) allows a measure of control by the district court over such suits by allowing the court to dismiss a case where it is satisfied that an action is frivolous or malicious. The keystone of such dismissal is the court's exercise of discretion under Section 1915(d). The focal point of that discretion is the court's duty to satisfy itself that the action is frivolous or malicious. In making that determination, unless it appears as a matter of law, it necessarily follows that the court must ascertain whether there is a factual basis for the petitioner's suit. See Jones v. Bales, supra.

In assessing the legal sufficiency of a complaint, the customary standard has been stated by the Supreme Court in Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, to require that:

a complaint should not be dismissed for failure to state a claim unless it...

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