64 F.3d 951 (4th Cir. 1995), 93-7263, Nasim v. Warden, Maryland House of Correction

Docket Nº:93-7263.
Citation:64 F.3d 951
Party Name:Ghulam Mohammed NASIM, Plaintiff-Appellant, and Ghulam Ahmed Nasim; Abdul Karim Nasim, Plaintiffs, v. WARDEN, MARYLAND HOUSE OF CORRECTION; Asbestos Contractor, Maryland House of Correction; Unknown Prison Officials, Maryland House of Correction, All Individually and in their Official Capacity Under Color of State Law, Defendants-Appellees.
Case Date:September 15, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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64 F.3d 951 (4th Cir. 1995)

Ghulam Mohammed NASIM, Plaintiff-Appellant,


Ghulam Ahmed Nasim; Abdul Karim Nasim, Plaintiffs,



Maryland House of Correction; Unknown Prison Officials,

Maryland House of Correction, All Individually and in their

Official Capacity Under Color of State Law, Defendants-Appellees.

No. 93-7263.

United States Court of Appeals, Fourth Circuit

September 15, 1995

Argued June 6, 1995.

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ARGUED: Steven H. Goldblatt, Appellate Litigation Clinical Program, Georgetown University Law Center, Washington, DC, for appellant. Carmen Mercedes Shepard, Office of the Attorney General of Maryland, Baltimore, MD, for appellees. ON BRIEF: John J. Hoeffner, Supervising Attorney, Paul S. Ellis, Student Counsel, Appellate Litigation Clinical Program, Georgetown University Law Center, Washington, DC, for appellant. J. Joseph Curran, Jr., Attorney General of Maryland, Regina Hollins Lewis, Assistant Attorney General, Baltimore, MD, for appellees.


Affirmed by published opinion. Judge NIEMEYER wrote the opinion for the court, in which Judges RUSSELL, WIDENER, HALL, WILKINSON, WILKINS, HAMILTON, LUTTIG, and WILLIAMS joined. Judge WILKINSON wrote a concurring opinion, in which Judges RUSSELL, WIDENER, WILKINS, HAMILTON, and WILLIAMS joined. Judge MOTZ wrote a dissenting opinion, in which Chief Judge ERVIN and Judges MURNAGHAN and MICHAEL joined.


NIEMEYER, Circuit Judge:

Section 1915(a) of Title 28 of the United States Code authorizes a district court to accept for filing, without the payment of costs, lawsuits brought by persons unable to pay such costs, and § 1915(d) authorizes the court to dismiss the suit before it is served "if satisfied that the action is frivolous or malicious." In this case we examine the appropriate standard for the district court to apply when screening these in forma pauperis cases and the standard for our review of the district court's decisions.


Ghulam M. Nasim, proceeding pro se and in forma pauperis under 28 U.S.C. § 1915, filed suit in the district court under 42 U.S.C. § 1983 against the Warden of the Maryland House of Correction in Jessup, Maryland, and others allegedly involved in removing asbestos at the House of Correction for Eighth Amendment violations. Nasim alleges that the defendants deliberately exposed him to asbestos when asbestos removal contractors "dumped" asbestos into his prison cell while he was incarcerated during the period from April 1983 to November 1989 and that, as a result, he sustained a relapse from stroke, lung disease, eye disease, skin lesions, and psychological harm. Almost four years after he had been transferred from the Maryland House of Correction to a federal prison, he filed the complaint in this case.

Reviewing the complaint before authorizing service of process, the district court concluded that Nasim was in fact indigent but decided to dismiss the action as frivolous under 28 U.S.C. § 1915(d), without requiring service on defendants. The court ruled that the complaint was time-barred on its face, as it revealed that Nasim knew or should have known of his injury and its cause at the time the asbestos was being removed in 1989. In particular, the district court referred to the second paragraph of Nasim's complaint where Nasim alleged:

Plaintiff and other inmate witnessed and observed on several occasions when Asbestos crew secretly entered into the F-Building

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during night hours and neither prison staff nor the contractor gave any protection, warning or respirator to the Plaintiff or any other inmate at the F-Building during this entire period [in 1989].

The court concluded that Nasim's action, filed in September 1993, almost four years after the alleged asbestos removal, was time-barred under the applicable three-year statute of limitations.

On motion for reconsideration based on newly discovered evidence, Nasim alleged that he did not know that the asbestos caused his injury until 1991 when he received information that he had requested under the Freedom of Information Act and read news articles in The Baltimore Sun about "hundreds of similar lawsuits filed in the Circuit Court for Baltimore City" which "substantiated that 'exposure to cancer-causing asbestos chemicals had enhanced plaintiff's relapse from stroke on February 6, 1989' in addition to lung, skin, eye and ear disease...." The district court denied the motion for reconsideration, concluding that the facts advanced by Nasim did not relieve him of the "burden of timely filing his action."

On appeal, a panel of this court, in a divided opinion, reversed the judgment of the district court, applying a standard of review which "requires appellate courts to examine carefully both the complaint and the legal principles governing the limitations defense." Nasim v. Warden, 42 F.3d 1472, 1477 (4th Cir.1995). The panel opinion concluded that:

A general awareness that asbestos poses certain unidentified health risks, as evidenced here by Nasim's complaints to prison officials, does not warrant the conclusion, at least at this preliminary stage, that Nasim possessed sufficient information that he knew, or should have known, ... that the asbestos was the probable cause of his health problems....

Id. at 1480 (internal citations and quotations omitted). In ordering a rehearing en banc, we vacated the panel decision, and now we affirm the judgment of the district court.


The federal in forma pauperis statute, first enacted in 1892, is intended to guarantee that no citizen shall be denied access to the courts "solely because his poverty makes it impossible for him to pay or secure the costs." Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342, 69 S.Ct. 85, 90, 93 L.Ed. 43 (1948). The statute advances a policy of equality of access, ensuring that those who cannot afford the payment of costs have the same ability to present meritorious claims as those who can afford such payment.

Congress recognized that when it eliminated the requirement for paying costs for the purpose of ensuring "equal treatment for every litigant before the bar," see Coppedge v. United States, 369 U.S. 438, 447, 82 S.Ct. 917, 922, 8 L.Ed.2d 21 (1962), it was also removing any "economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989). In an effort to prevent the abuse of litigation that free access to the courts might encourage, the statute confers discretion on the district court to dismiss an action as frivolous if the court is "satisfied" that the action lacks an arguable basis either in law or in fact. See 28 U.S.C. § 1915(d); Neitzke, 490 U.S. at 325, 109 S.Ct. at 1831-32. As the Court in Neitzke explained:

Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11.

Id. at 327, 109 S.Ct. at 1833. Thus, the discretion granted to district judges to screen out meritless cases serves as the surrogate for the constraint which financial considerations provide "in the realm of paid cases." Neitzke, 490 U.S. at 328, 109 S.Ct. at 1833.

If meritless suits were not linked to some measure of accountability, the free access to the courts, coupled with an intent to misuse the system, 1 would predictably clog the judicial

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system to such an extent that "meritorious complaints [would] receive inadequate attention or be difficult to identify amidst the overwhelming number of meritless complaints." Neitzke, 490 U.S. at 326, 109 S.Ct. at 1832 (emphasis added). That concern is not insubstantial. Data from the Fourth Circuit, for example, show that during the last three years, the percentage of in forma pauperis filings on appeal has increased from about one-third to one-half of all filings, and the raw numbers have increased from 1,331 in fiscal year 1992 to 2,133 for the first ten months of fiscal year 1995 (2,560 annualized). 2

Section 1915(d) in effect appoints the district court as the gatekeeper of in forma pauperis filings, armed with meaningful discretion to exclude those cases which it is satisfied are frivolous. The district court's role is defined in Neitzke:

[T]he statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.

490 U.S. at 327, 109 S.Ct. at 1833. The authority to "pierce the veil of the complaint's factual allegations" means that the district court is not bound to "accept without question the truth of the plaintiff's allegations" as it might be when considering a motion under Rule 12(b)(6). Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992). While that authority does not authorize the district court to engage in factfinding to resolve disputed facts, it does permit the court to apply common sense, reject the fantastic, and rebut alleged matters with judicially noticeable facts. Id. at 32-33, 112 S.Ct. at 1733-34.

Thus, to provide free access to the courts without overwhelming the efficient administration of justice with meritless cases, the system relies primarily on the judgment of the district courts to permit suits that are arguably meritorious and to exclude suits that have no arguable basis in law or fact. 3

In deference to the...

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