Covington v. Cole, 75--1660
| Decision Date | 22 March 1976 |
| Docket Number | No. 75--1660,75--1660 |
| Parties | Edwin C. COVINGTON, Plaintiff-Appellant, v. Aubrey COLE, Individually and in his official capacity as Sheriff of JasperCounty, Texas, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert H. Mow, Jr., Dallas, Tex. (Court-appointed), for plaintiff-appellant.
Bill A. Martin, Newton, Tex., Richard C. Hile, Jasper, Tex., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Texas.
Before GOLDBERG and AINSWORTH, Circuit Judges, and NICHOLS, Associate Judge. *
This is an appeal from a district court order dismissing a complaint which alleged that certain local officials in Texas had deprived Covington of his civil rights. The district court order noted that 'the Court is of the opinion that the petition was inadvertently filed in the first instance,' but went on to hold that the complaint 'fails to state a cause of action upon which relief can be granted.' We find that the complaint does state a cause of action and we reverse.
The complaint at issue here was filed on October 17, 1974, was labeled 'in propia personam,' and was signed 'Edwin C. Covington, BY: Mrs. Edwin C. Covington, attorney in fact.' The allegations of the complaint are set out in haec verba in the margin, and may be summarized as follows:
On January 5, 1974, Sheriff Cole and Deputy Sheriff Weaver, acting without a warrant and without probable cause, arrested Edwin Covington in specifically described circumstances, and subjected Covington to a racial slur. 1
On January 5, 1974, Police Chief Wolfe ransacked the Covingtons' home in an illegal, warrantless search. 2
Later in January, 1974, Edwin Covington was transferred into the custody of officials in Nacogdoches, Texas, where he was required to undergo a polygraph test and further questioning, all without being permitted the assistance of counsel. 3
On or before February 12, 1974, several named defendants conspired to transfer Edwin Covington from the Jasper County Jail to the Angelina County Jail, without any official authorization for such transfer. 4 On April 25 and 26, 1974 several named defendants conspired to give, and did give, perjured testimony in a criminal prosecution against Edwin Covington. 5
At the end of this notarized complaint appeared a notarized 'Affidavit in Forma Pauperis,' in the following form:
That I, Mrs. Edwin C. Covington, Attorney in Fact, for Plaintiff in the foregoing complaint, upon my oath state that he is unable to pay the costs incident to this preceeding (sic), or to give security therefor.
Attorney in fact
The district court referred the matter to a United States Magistrate who reported, in part, as follows:
The complete petition is a barrage of alleged language used and acts performed in the handling of the said Edwin C. Covington, and other matters, all of which are inadequate and insufficient to state a cause of action upon which relief can be granted.
It is noted that Mrs. Edwin C. Covington, who swore to the affidavit and who signed the complaint as an attorney in fact, is not authorized to practice law in the Eastern District of Texas, and there is some question as to whether she is even a licensed lawyer.
It is further to be noted that this is not a pro se petition by an inmate. It is further to be noted that the affidavit in forma pauperis is insufficient to sustain any action to proceed in forma pauperis even if it had been signed by a pro se petitioner, which apparently it was not, and is therefore inadequate to support a petition of this nature.
It is further to be noted that there is no written order by the judge of this Court authorizing the filing and processing of this cause of action in forma pauperis.
The Magistrate recommended that the cause of action be dismissed and that the plaintiff not be authorized to proceed in forma pauperis.
On November 7, 1974, the district court, without requiring responsive pleadings and without giving the plaintiff an apportunity to amend, dismissed the complaint in the following order:
CAME ON FOR CONSIDERATION the civil rights complaint filed by the above-named plaintiff, the Court having heretofore ordered that this matter be referred to the U.S. Magistrate at Beaumont, Texas, for proper consideration pursuant to applicable laws and orders of this Court, and this Court having received the report of the U.S. Magistrate pursuant to such order, and having considered said report, along with the record, files and pleadings, and all available evidence, which show conclusively, and the Court is of the opinion that the petition was inadvertently filed in the first instance, further that the same fails to state a cause of action upon which relief can be granted, and this cause should be dismissed; it is therefore,
ORDERED, ADJUDGED and DECREED that this cause be, and the same is hereby in all things DISMISSED from the docket of this Court.
Covington then filed a pro se motion, which he himself signed, requesting that the district court 'grant the plaintiff a certificate of probable cause to the United States Court of Appeals for the Fifth Circuit from the order entered . . . on the 7th day of November, 1974.' The district court considered this to be a motion for leave to appeal in forma pauperis and denied it, stating that the court hereby adopts the
Conclusions of the U.S. Magistrate, and in addition thereto, finds that the petition is frivolous and without merit, that the matter was inadvertently filed by the Clerk of this Court without prepayment of cost and without securing the authority of the Court to have filed the same, and finds and concludes that the Court would not have authorized the filing of said petition if it had initially been presented to the Court for determination, and further finds that the petition was filed by an individual who is not an attorney on behalf of the plaintiff and was signed by said individual who has not been authorized to practice law in this Court, and the Court further finds that the petition is little more than a harassment action by the plaintiff to harass numerous public officials in various counties throughout the State where in the petitioner has been incarcerated, and that this Court has the duty to protect the officials from such harassment pursuant to Parsell v. United States, 218 F.2d (232) 236, and further finds that the petition fails to state any cause of action upon which relief can be granted, and that the same should have been dismissed pursuant to the authority of Jones v. Bales (D.C.Ga.), 58 F.R.D. 453 . . .
Covington subsequently filed with this Court a pro se brief on the merits of the dismissal of the complaint. It was treated initially as a motion for leave to appeal IFP, which motion was denied by a single judge of this Circuit. Covington then paid the docketing fee and obtained permission to proceed on the original record and typewritten brief. Feeling that the issues raised by Covington were not insubstantial, another judge of this Circuit appointed counsel for Covington for the purpose of filing a supplemental brief. From this skimpy, unenlightening record and confused procedural background, we perceive the following issue to be before this panel: did the district court err in its November 7 order dismissing the complaint for 'failure to state a cause of action upon which relief can be granted'?
As a threshold matter we note, as did the U.S. Magistrate and the district court in its denial of leave to appeal IFP that the complaint was signed not by the plaintiff, but by the plaintiff's wife as 'attorney in fact' for the plaintiff. Federal Rule of Civil Procedure 11 requires that 'A party who is not represented by an attorney shall sign his pleading and state his address.' The role that the plaintiff's failure to sign played in the district court's disposition of this case is unclear. 6 This factor did not, however, deter the district court in its November 7 order from reaching the merits and dismissing the complaint with prejudice. Without deciding whether a signature by a spouse as 'attorney in fact' can be sufficient under Rule 11, we can easily conclude that sua sponte dismissal with prejudice is not a proper disposition in the face of this arguable defect, at most a technical defect, in the complaint. 7 Even if it might have been appropriate for the trial court to dismiss the complaint without prejudice to its refiling with the plaintiff's signature, we think that in the present posture of the case, the interests of justice require that we treat the complaint, as did the district court, as properly filed, and proceed to the merits of the appeal. 8
In reviewing a dismissal for failure to state a cause of action, we must reverse 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80. This standard is clearly hostile to summary dismissal based on the face of a complaint, and becomes more so when a pro se complaint from a prisoner is considered, because such complaints are to be read very liberally. 9 Haines v. Kerner, 1972, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652; Martin v. Wainwright, 5 Cir. 1976, 526 F.2d 938; Watson v. Ault, 5 Cir. 1976, 525 F.2d 886; Gamble v. Estelle, 5 Cir. 1975, 516 F.2d 937; Campbell v. Beto, 5 Cir. 1972, 460 F.2d 765.
We inquire then, whether within the universe of theoretically provable facts there exists a set which can support a cause of action under this complaint, indulgently read. We need not look far. The allegation, listed as (2) above, of a warrantless search of the Covington's home is amply specific to conjure visions of an actionable violation of Covington's fourth amendment rights. See Monroe...
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