Abdul-Akbar v. Watson

Decision Date20 April 1990
Docket NumberNo. 89-3314,A,ABDUL-AKBA,89-3314
Citation901 F.2d 329
PartiesDebro Siddigppellant, v. WATSON, Robert J.; Darcy Watson; Walter Redman; Kay Jacobs; U.S. District Court Delaware; Department of Corrections.
CourtU.S. Court of Appeals — Third Circuit

Edward W. Ferruggia (argued), David F. Gould III, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellant.

David A. White (argued), Deputy Atty. Gen., Dept. of Justice, Wilmington, Del., for appellees.

Before STAPLETON and MANSMANN, Circuit Judges, and ACKERMAN, District Judge. *


MANSMANN, Circuit Judge.

In this appeal we must determine at what point the denial of in forma pauperis status amounts to a denial of access to the courts and whether a district court can bar an inmate from filing future in forma pauperis suits based on 42 U.S.C. Sec. 1983 claims. Because we conclude that the district court erred by issuing an order barring Abdul-Akbar from filing any in forma pauperis Sec. 1983 suits without considering the effects on a legitimate claim and we further conclude that his claim is not legally "frivolous," we will vacate and remand to the district court for further proceedings.


Debro Siddig Abdul-Akbar, a.k.a. Debro Michael Davis, ("Abdul-Akbar") filed suit under 42 U.S.C. Sec. 1983 alleging a violation of his sixth amendment right of access to the courts by prison officials who forced him to surrender legal papers he claims were necessary to litigate his cases. Abdul-Akbar is an inmate at the Delaware Correctional Center, Maximum Security Unit, located at Smyrna, Delaware. He originally filed the complaint in the District Court for the Eastern District of New York, but it was transferred to the District Court of Delaware.

Abdul-Akbar claims that, in retaliation for filing lawsuits, several unnamed prison corrections officers came to his cell on February 15, 1989, and ordered him to clean some of the accumulated legal material from his cell by placing what he needed in a box and disposing of the remainder. He requested that he be allowed to mail the excess material to the district court and his request was granted. He mailed his papers to the clerks for the Eastern District of Pennsylvania and the District Court of Delaware. By early March, all of Abdul-Akbar's materials were returned by the clerks with an explanation that the court could not act as a repository for his material. In addition, Abdul-Akbar complains that he is denied access to the law library, that his requests for photocopying take too long, and that he is denied access to jailhouse lawyers or other experienced assistance. Abdul-Akbar also claims that the policy of the district court of referring Sec. 1983 prisoner civil rights suits to United States Magistrates results in his being held to a higher standard in his pleadings than an attorney could meet. 1

The district court referred Abdul-Akbar's complaint to a U.S. Magistrate who recommended that the complaint be dismissed and that, in the future, Abdul-Akbar be denied in forma pauperis status for all cases filed pursuant to Sec. 1983. The magistrate noted that Abdul-Akbar had filed forty Sec. 1983 claims and three under 28 U.S.C. Sec. 2254 in seven years and concluded that Abdul-Akbar had abused his privilege of proceeding in forma pauperis. The district court adopted the magistrate's recommendation, dismissed the suit and issued an order directing the Clerk of the U.S. District Court for the District of Delaware to reject any future Sec. 1983 claims from Abdul-Akbar unless he paid the filing fee and was otherwise in compliance with court rules. The order provided that Abdul-Akbar was permitted to file in forma pauperis all matters other than Sec. 1983 so long as he did not abuse the privilege.

Abdul-Akbar appeals, claiming the order impermissibly denies him access to the courts. He also requests review of the magistrate's recommendation and district court's dismissal of his suit pursuant to 28 U.S.C. Sec. 1915(d). We granted him in forma pauperis status to file the appeal and appointed counsel. We review the issuance of an order barring further filing of litigation for an abuse of discretion. Matter of Packer Ave. Assoc., 884 F.2d 745 (3d Cir.1989). Our review of the district court's dismissal of a suit pursuant to 28 U.S.C. Sec. 1915(d) involves the application of legal precepts and, therefore, is plenary. Wilson v. Rackmill, 878 F.2d 772 (3d Cir.1989).


Because of the importance of the right involved here, i.e., an indigent prisoner's right to proceed in forma pauperis, we address that issue first. "It is now established beyond doubt that prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977). Moreover, we recognize that "[p]aupers have been an important--and valued--part of this Court's docket, see e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and remain so." In re McDonald, 489 U.S. 180, 109 S.Ct 993, 996, 103 L.Ed.2d 158 (1989). We also have stated that "[a]ccess to the courts is a fundamental tenet to our judicial system; legitimate claims should receive a full and fair hearing no matter how litigious the plaintiff may be." In re Oliver, 682 F.2d 443, 446 (3d Cir.1982) (emphasis added). Litigiousness alone will not support an injunction restricting the plaintiff's filing activities. Id.

Yet, we also recognize that the cost in time and personnel to process pro se and in forma pauperis pleadings requires some portion of the court's limited resources and ties up these limited resources to the detriment of other litigants. See e.g., In re Green, 669 F.2d 779 (D.C.Cir.1981), In re McDonald, 489 U.S. 180, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989). Often these litigious plaintiffs are repetitious, frivolous and even malicious in their pleadings. The frivolousness of some pleadings is evidenced by Abdul-Akbar's own correspondence in which he has threatened: "If I don't get a jump [suit] to fit me by tomorrow I am going to a suit, if I don't get my family to be able to send me socks or prison official's don't issue me some I am going to file a suit."

The Supreme Court addressed the nature of Sec. 1983 claims in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) when the Court explained that

in any Sec. 1983 action the initial inquiry must focus on whether the two essential elements to a Sec. 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.

451 U.S. at 535, 101 S.Ct. at 1913. The question remaining in Parratt v. Taylor was whether the negligent loss of a prisoner's hobby kit rose to a deprivation of property without due process. The Court held that it did not since state tort remedies would fully compensate the prisoner for his loss. The importance of the Court's holding in Parratt v. Taylor is that not every "injury", i.e., loss of a hobby kit or failure to receive a pair of socks, amounts to a violation of a constitutional right.

In this instance, however, Abdul-Akbar does raise an important issue since he challenges the limitation placed on his access to federal courts. The magistrate's recommendation and the district court's order revoking his in forma pauperis status create a presumption that all of Abdul-Akbar's future claims will be frivolous or duplicative. That has not necessarily been true of all of his past claims: one case was settled, albeit for a nominal amount, and another suit was reinstated after a decision by our court.

We recently recognized in Matter of Packer Ave. Assoc., 884 F.2d 745 (3d Cir.1989) that while the All Writs Act, 28 U.S.C. Sec. 1651, gives the district court the power to issue an injunction to restrict the filing of meritless pleadings, it is an extreme remedy which must "be narrowly tailored and sparingly used." 884 F.2d at 747. Consequently, we concluded, based on previous decisions, that district courts in this circuit may issue an injunction to require litigants to obtain the approval of the court before filing further complaints. Id. See also Chipps v. United States Dist. Court for the Middle Dist. of Pa., 882 F.2d 72 (3d Cir.1989) and In re Oliver, 682 F.2d 443 (3d Cir.1982).

In Packer Ave. Assoc., we turned to a decision of our sister court of appeals in In re Green, 669 F.2d 779 (D.C.Cir.1981). In In re Green, the Court of Appeals for the D.C. Circuit was faced with a situation similar to ours here, involving another litigious prisoner who had "filed between 600 and 700 complaints in federal and state courts" in approximately ten years. 669 F.2d at 781. The district court order from which Green appealed to the court of appeals had permitted Green to file actions only if he paid the required filing fees and deposited $100 cash with the clerk as security for costs. Id. at 784. The court of appeals noted that such an order effectively denied Green meaningful access to the courts. Consequently, the court of appeals directed the district court to enter an order amending its previous one to state:

Petitioner may not file any civil action without leave of court. In seeking leave of court, petitioner must certify that the claims he wishes to present are new claims never before raised and disposed of on the merits by any federal court. Upon a failure to certify or upon a false certification, petitioner may be found in contempt of court and punished accordingly.

Green, 669 F.2d at 787. We cited the language of this order in Matter of Packer, which involved a suit in the civil bankruptcy context. We have decided here to adopt the same language for prisoner pro se cases with one addition.

We recognize that the district court has the tool set forth in Sec. 1915(d) of...

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