Boston v. Stanton, No. 77-0907-CV-W-2.

CourtUnited States District Courts. 8th Circuit. Western District of Missouri
Citation450 F. Supp. 1049
Decision Date08 May 1978
PartiesAndrew BOSTON a/k/a Leon Jones, Plaintiff, v. Susan STANTON, Ray Coleman, and Samuel Newman, Jr., Defendants.
Docket NumberNo. 77-0907-CV-W-2.

450 F. Supp. 1049

Andrew BOSTON a/k/a Leon Jones, Plaintiff,
v.
Susan STANTON, Ray Coleman, and Samuel Newman, Jr., Defendants.

No. 77-0907-CV-W-2.

United States District Court, W. D. Missouri, W. D.

May 8, 1978.


450 F. Supp. 1050
COPYRIGHT MATERIAL OMITTED
450 F. Supp. 1051
Andrew Boston, pro se

Willard B. Bunch, County Counselor, Jackson County, John Edward Cash, Associate County Counselor, Kansas City, Mo., for defendants.

MEMORANDUM AND ORDER

COLLINSON, District Judge.

Plaintiff, a former inmate of the Jackson County Jail now confined at the Missouri State Penitentiary, Jefferson City, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 challenging various conditions and occurrences in the Jail. In a previous order, the Court dismissed plaintiff's claims for equitable and declaratory relief as moot, granted provisional leave to proceed in forma pauperis on plaintiff's claims for damages, and directed defendants to show cause why leave to proceed in forma pauperis should not be granted unconditionally. Defendants have now filed their response to the show cause order. In addition, plaintiff has filed a motion for appointment of counsel, a motion to vacate the Court's order of February 28, 1978 granting defendants an extension of time in which to file their response to the show cause order, and a motion "for a summary and/or default judgment."

Before turning to the issues in this action, it is necessary to discuss plaintiff's involvement with Jail officials at some

450 F. Supp. 1052
length. It appears from records submitted by defendants that Boston originally came to the Jail in March 1977 after he was charged with stealing property valued at more than fifty dollars. He remained confined there until June 30, 1977. On that day, defendant Newman, a jail employee, escorted him to the Truman Medical Center for a medical examination. Once out of Newman's sight, plaintiff simply walked away from the hospital. He was not recaptured until October 29, 1977

Upon his return to the Jail, it appears that plaintiff was taken before an institutional disciplinary panel for a hearing. The hearing report, submitted by defendants as an exhibit, states that Boston admitted walking away from the hospital. The disciplinary panel ordered Boston to be confined in maximum security for thirty days and permanently assigned to the fourteenth floor of the Jail. Plaintiff appealed to defendant Stanton, asserting that he did not escape because no restraints were broken and no personal violence threatened or committed. He also repeated his earlier defense that Newman left the hospital before he departed. Defendant Stanton reversed the order directing permanent confinement on the fourteenth floor, but otherwise affirmed the decision.

By the time plaintiff returned to the Jail, it appears that defendant Newman was Floor Supervisor for the midnight shift in the Maximum Security section. Plaintiff alleges that he was verbally and physically harassed by Newman while confined in maximum security. Plaintiff also asserts that he was deliberately served cold or unpalatable food and that his rations were reduced by Newman. The complaint also asserts that Newman was responsible for a shakedown in which plaintiff was allegedly physically harassed by an unnamed "300 pound corrections officer." Plaintiff admits, however, that he threw one of his meals at a control center window prior to the shakedown described above. Records submitted by defendants indicate that the shakedown was ordered only after plaintiff threw food at the control center window. The records also indicate that plaintiff was put on a diet of sandwiches and fruit until he decided not to throw food.

The complaint also refers to two other grievances. First, plaintiff asserts that defendants denied his access to the Jail Law Library, and interfered with his right of self-representation by denying him access to commissary items, such as paper and envelopes. He also alleges that he was denied proper medical care. No factual allegations are advanced to support this claim.

To summarize, plaintiff alleges (1) that he was improperly confined in maximum security, (2) that he was subjected to various forms of physical and verbal harassment by Jail officials, (3) that he was denied access to the Jail Law Library, and (4) that he was denied proper medical care. He seeks $15,000 damages from defendant Stanton, $10,000 from defendant Coleman, and $20,000 from defendant Newman.

As a part of their response to the Court's show cause order, defendants have filed a motion for order denying leave to proceed in forma pauperis. The motion is accompanied by numerous documents, some relating to plaintiff's confinement in the Jail and others detailing his state criminal trial. On the basis of these documents, defendants assert that:

All of plaintiff's alleged deprivations and injuries are either:
1. reasonable administrative responses to actions admitted by his pleadings, or by other documents plaintiff himself wrote, e. g., placement in maximum security, putting plaintiff on sandwich rations, use of a security force, frisk of plaintiff, and transfer to C-section of Maximum Security;
2. clearly refuted by the record, e. g., alleged "denial" of medical attention, and alleged interference with plaintiff's self-representation, or,
3. de minimus, e. g., the cold food, and alleged threats.

Defendants also assert that plaintiff can prove no set of facts which would establish a right to recover against the defendants.

450 F. Supp. 1053

Defendants' motion must be considered against the law concerning construction and disposition of pro se prisoner complaints. It is well settled that pro se complaints must be construed liberally. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1973). This process is described more fully in Serna v. O'Donnell, 70 F.R.D. 618, 621 (W.D.Mo.1976):

Lenient construction of prisoner complaints involves either looking at the surface of the infrequent well drawn pleading or, in the more usual case of a poorly drawn pleading, looking below its surface or between the lines for matters either not raised properly or at all. After understanding what the plaintiff is alleging, the Court must, if there is a request to proceed in forma pauperis, determine whether the case is frivolous or malicious. Whereas in understanding a pleading, leniency is necessary to counteract the plaintiff's lack of legal experience, the same degree of predisposition in favor of the pro se plaintiff is not called for when a determination is made under 28 U.S.C. § 1915(d).

The law surrounding the determination that a complaint is frivolous is discussed in Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972):

Section 1915 provides the statutory basis for in forma pauperis proceedings in federal courts. Subsection (d) provides in part that "the court may . . . dismiss the case filed in forma pauperis . . . is satisfied that the action is frivolous or malicious." The statute does not state how the court is to become so satisfied and does not define the words frivolous or malicious. Furthermore, to this Court's knowledge, neither the Supreme Court nor the Court of Appeals for this circuit has construed the statute in these respects. This Court, however, reads subsection (d) as a very broad grant of discretion to the courts regarding management of in forma pauperis actions. Subsection (d) is a grant of power to dismiss in situations where dismissal under Federal Rule of Civil Procedure 12 might be improper. . . .
The Federal Rules of Civil Procedure are inadequate to protect the courts and defendants — who it should be remembered pay for their defense — from frivolous litigation from indigent prisoners. The Rules are liberal; they are designed so that most cases will actually go to trial if the parties so desire. Under current standards, Rule 12 motions to dismiss are rarely properly granted. See Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Haines v. Kerner, 404 U.S. 519 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Campbell v. Beto, 460 F.2d 765 (5th Cir. 1972). The liberal approach of the Rules is probably desirable, but the rules contemplate litigants who are limited by the realities of time and expense. They also contemplate litigants with a basic respect for accuracy. As Judge Duniway has written, "We know from said experience with habeas corpus and 2255 cases that imprisoned felons are seldom, if ever, deterred by the penalties of perjury. They do not hesitate to allege whatever they think is required in order to get themselves even the temporary relief of a proceeding in court." Weller v. Dickson, 314 F.2d 598, 602 (9th Cir. 1963) (concurring opinion). A reasonably intelligent prisoner with a willingness to misrepresent facts can often avoid both 12b dismissal and summary judgment, although he actually has no chance of eventual success in his suit. Even if summary judgment can be won by a defendant, much expense may already have been suffered by him in retaining counsel to conduct the defense.
It is plain to this Court that courts need an extra measure of authority when faced with actions proceeding in forma pauperis — particularly where the action is brought by a prisoner seeking damages. And it is this court's conclusion that Congress has granted that extra authority by enacting 28 U.S.C. § 1915(d). In light of 1915(d)'s general purpose, the specific term "frivolous" refers to an action in which the plaintiff's realistic chances of ultimate success are slight. See, e. g., Urbano v. Sondern, 370 F.2d 13 (2d Cir.
450 F. Supp. 1054
1966), aff'g 41 F.R.D. 355 (D.Conn.1966); Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963) (Duniway, J. concurring). This is not to say that such suits should not be allowed filed or be dismissed abruptly or that a court should readily assume frivolity because it is prisoner filed. To the contrary, it is incumbent upon the court to develop the
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28 practice notes
  • Anderson v. Coughlin, 85
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 26, 1983
    ...or lack of same." Jones v. Bales, 58 F.R.D. 453, 464 (N.D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir.1973), cited in Boston v. Stanton, 450 F.Supp. 1049, 1053-54 (W.D.Mo.1978). At whatever point it is clear that merit is lacking, the IFP action should be dismissed as frivolous under Sec. 1915(d......
  • Gale v. U.S. Dept. of Justice, Federal Bureau of Prisons, 79-2331
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 12, 1980
    ...where the plaintiff's realistic chances of success are slight, Clark v. Zimmerman, 394 F.Supp. 1166 (M.D.Pa.1975); Boston v. Stanton, 450 F.Supp. 1049 (W.D.Mo.1978); Page 231 Mann v. Leeke, 73 F.R.D. 264 (D.C.S.C.1974) aff'd without op., 551 F.2d 307 (4th Cir. 1977); or where the claim has ......
  • Johnson v. Teasdale, 78-4150-CV-C.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • September 19, 1978
    ...care not cognizable). A significant number of prisoner claims are dismissed as frivolous or malicious. See, e. g., Boston v. Stanton, 450 F.Supp. 1049 (W.D.Mo.1978). It is apparent that these cases are not dismissed because of the actions of a sinister conspiracy, but because they are legal......
  • State v. Rollie, 29515
    • United States
    • Court of Appeal of Missouri (US)
    • June 11, 1979
    ...adequate assistance from persons trained in the law. For further application of the alternative question, see Boston v. Stanton, 450 F.Supp. 1049 The appellant herein at all times had the readily available assistance of persons trained in the law to assist him. On the allegation that appell......
  • Request a trial to view additional results
28 cases
  • Anderson v. Coughlin, No. 85
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 26, 1983
    ...or lack of same." Jones v. Bales, 58 F.R.D. 453, 464 (N.D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir.1973), cited in Boston v. Stanton, 450 F.Supp. 1049, 1053-54 (W.D.Mo.1978). At whatever point it is clear that merit is lacking, the IFP action should be dismissed as frivolous under Sec. 1915(d......
  • Gale v. U.S. Dept. of Justice, Federal Bureau of Prisons, No. 79-2331
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 12, 1980
    ...where the plaintiff's realistic chances of success are slight, Clark v. Zimmerman, 394 F.Supp. 1166 (M.D.Pa.1975); Boston v. Stanton, 450 F.Supp. 1049 (W.D.Mo.1978); Page 231 Mann v. Leeke, 73 F.R.D. 264 (D.C.S.C.1974) aff'd without op., 551 F.2d 307 (4th Cir. 1977); or where the claim has ......
  • Johnson v. Teasdale, No. 78-4150-CV-C.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • September 19, 1978
    ...care not cognizable). A significant number of prisoner claims are dismissed as frivolous or malicious. See, e. g., Boston v. Stanton, 450 F.Supp. 1049 (W.D.Mo.1978). It is apparent that these cases are not dismissed because of the actions of a sinister conspiracy, but because they are legal......
  • State v. Rollie, No. 29515
    • United States
    • Court of Appeal of Missouri (US)
    • June 11, 1979
    ...adequate assistance from persons trained in the law. For further application of the alternative question, see Boston v. Stanton, 450 F.Supp. 1049 The appellant herein at all times had the readily available assistance of persons trained in the law to assist him. On the allegation that appell......
  • Request a trial to view additional results

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