Braden v. Estelle

• Decision Date: 17 March 1977
• Docket Number: Civ. A. No. H-77-67.
• Citation: 428 F. Supp. 595
• Parties: Howard Eugene BRADEN, Plaintiff, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

428 F. Supp. 595

Howard Eugene BRADEN, Plaintiff, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, et al., Defendants.

Civ. A. No. H-77-67.

United States District Court, S. D. Texas, Houston Division.

March 17, 1977.

Howard Eugene Braden, pro se.

No appearance for defendants.

MEMORANDUM AND ORDER

CARL O. BUE, Jr., District Judge.

I. INTRODUCTION

Plaintiff, an inmate at the Clemens Unit of the Texas Department of Corrections (TDC), filed the instant civil rights action pro se seeking declaratory, injunctive and monetary relief pursuant to 42 U.S.C. § 1983. Plaintiff complains specifically that a number of magazines for men have been withheld from him unconstitutionally by officials of the TDC. He has also requested permission to proceed in forma pauperis without prepayment of fees pursuant to 28 U.S.C. § 1915.¹

For the reasons hereinafter delineated, the Court concludes that plaintiff should not be allowed to proceed further under 28 U.S.C. § 1915 without remittance of a partial payment of the filing fee.² In making this determination, this Court and the other Judges comprising the Southern District of Texas hereby adopt a flexible plan requiring partial payment of court costs by prisoners who seek to proceed in forma pauperis, but who, in fact, can afford a minimal payment. As emphasized throughout this Order, the purpose of the "partial payment" requirement is to curb the indiscriminate filing of prisoner civil rights actions, by prompting inmates to "confront the initial dilemma which faces most other potential civil litigants: is the merit of the claim worth the cost of pursuing it?" Carroll v. United States, 320 F.Supp. 581, 582 (S.D. Tex.1970).

II. PERTINENT CHRONOLOGY

The instant complaint was received by the United States District Clerk on Friday, January 7, 1977. Plaintiff had enclosed the required number of properly completed copies of the complaint and had submitted the mandatory form affidavit requesting permission to proceed in forma pauperis. After thus establishing that the technical requirements of filing had been met, the Clerk filed the complaint on Tuesday, January 11, 1977, without prepayment of fees, on the basis of plaintiff's affidavit stating that he is "unable to pay" such fees. See Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976).

Under the purview of 28 U.S.C. § 1915(d), as interpreted in Watson v. Ault, supra at 891-93, and prior to the issuance of service of process, the complaint was subjected to an initial screening to determine whether or not (1) the cause of action is frivolous or malicious and (2) the allegation of poverty is supported in fact. An analysis of plaintiff's affidavit and the sources of current income listed therein indicated that further inquiry into his financial status and ability to pay court costs was justified. Plaintiff's affidavit revealed assets of "about $60.00" in his prison trust account, $10.00 in a savings account and a regular monthly income of $20.00 to $30.00 received from his relatives. In order to verify plaintiff's prison trust account activity, the Court requested, as it now does in most cases, a computer printout from E. & R. Accounting of the TDC. The printout and the accompanying Certificate of Attestation from the Supervisor of E. & R. Accounting, copies of which are attached to this Order as Exhibits 1 and 2, show that during the period of October 14, 1976, to March 4, 1977, plaintiff received a total of $190.00 from outside sources, and that on January 1, 1977, the date the affidavit was signed, plaintiff had $81.02 in his prison account. On March 4, 1977, the last day of the transaction period reflected on the computer printout, plaintiff had $41.02 in his account.

III. IN FORMA PAUPERIS PRISONER COMPLAINTS: NEED FOR GREATER JUDICIAL CONTROL

Approximately 20 percent of the pending civil actions in the Southern District of Texas, and almost all of the actions filed in forma pauperis in this District, are prisoner suits. The existence of such a large percentage of indigent prisoner complaints has created many problems for the courts. As the Federal Judicial Center observed in its report entitled "Recommended Procedures for Handling Prisoner Civil Rights Cases in Federal Courts," (hereinafter "Aldisert Report"),

"the caseload is not only large numerically, but is also difficult to handle, especially because the plaintiff is usually unrepresented. As a consequence, a great deal of judge time and effort are devoted to the `weeding out' of the nonmeritorious cases. Because of this, the best possible system for identifying the meritorious case must be developed. . . .

". . . It is generally agreed that most prisoner rights cases are frivolous and ought to be dismissed under even the most liberal of definitions of frivolity. What to most people would be a very insignificant matter becomes, because of the nature of prison life, a matter of real concern to the inmate. To have a United States district judge spending time on what, at best, would be a small claims court matter for the ordinary citizen, seems inappropriate given the small size of the federal judiciary."

Id. at 12-13 (footnote deleted).

The procedures and forms promulgated in the Aldisert Report have, almost in their entirety, been adopted by this District, including the hiring of personnel to deal exclusively with this portion of the docket. There is no doubt but that these new procedures have aided in the efficient and uniform treatment of prisoner complaints and in the identification and elimination of gross abuse by multiple filers. See, e. g., Hill v. Estelle, 423 F.Supp. 690 (S.D.Tex. 1976).

The emphasis of the Aldisert Report and the Fifth Circuit cases which have discussed procedures for prisoner complaints, see, e. g., Taylor v. Gibson, 529 F.2d 709 (5th Cir. 1976); Watson v. Ault, supra; Hardwick v. Ault, 517 F.2d 295 (5th Cir. 1975), has been on the adoption of procedures which would streamline the substantive review methods once a case has been filed. However, these procedures, standing alone, cannot solve the two major problems facing the courts in this area, that is, (1) the large number of prisoner cases and (2) the frivolous nature of many of them.

These two problems are unique to prisoner suits filed in forma pauperis. A potential plaintiff typically will weigh the chance of success against the cost of pursuing his action and assess realistically whether the possible benefits outweigh the predictable costs. In the absence of a cost requirement, however, a prisoner plaintiff need not confront this dilemma. In addition, an attorney, as opposed to a pro se litigant, is bound by the Code of Ethics and Rule 11 of the Federal Rules of Civil Procedure to file only suits where there are good grounds to support the pleadings.³ Moreover,

"persons proceeding in forma pauperis are immune from imposition of costs if they are unsuccessful; and because of their poverty, they are practically immune from later tort actions for `malicious prosecution' or abuse of process. Thus indigents, unlike other litigants, approach the courts in a context where they have nothing to lose and everything to gain. The temptation to file complaints that contain facts which cannot be proved is obviously stronger in such a situation. For convicted prisoners with much idle time and free paper, ink, law books, and mailing privileges the temptation is especially strong."

Jones v. Bales, 58 F.R.D. 453, 463 (N.D.Ga. 1972), aff'd per curiam, 480 F.2d 805 (5th Cir. 1973). Thus, not only are prisoners uninfluenced by the restraints which customarily deter private citizens from filing frivolous or borderline causes of actions, they actually are inclined to file lawsuits and engage in "writ writing" since this is one of the few activities left available to them which is beyond the administrative control of prison officials. Hence, as acknowledged by the Fifth Circuit Court of Appeals, "a large number of prisoner suits are predicated primarily upon the prisoners' boredom and resentment . . . ." Taylor, supra at 713.

IV. ADOPTION OF A PARTIAL PAYMENT AND STEP-BY-STEP PLAN

In recognition of the aforementioned problems, two procedures hereby are instituted in an effort to reduce the number of frivolously-filed suits and to enhance the quality of those which are filed:

A. Institution of a partial payment requirement to be employed in those cases where payment of all the fees would work a hardship, but where the payment of a nominal sum would not; and

B. Determination of permission to proceed in forma pauperis on a step-by-step basis as costs are incurred, rather than the present method whereby the grant or denial of pauper status applies to the entire proceedings.

If fairly applied, these concepts will help eliminate the "high percentage of the claims that are indeed frivolous" without encroaching on those which "raise constitutional issues of great difficulty and of great importance". Aldisert Report, supra at 13. Moreover, rather than placing the entire burden on this Court "to winnow out the wheat from the unusual amount of chaff," Watson, supra at 890, the imposition of a modest financial sacrifice in the form of a partial payment of the filing and service fees will force a potential inmate plaintiff to evaluate the merits of his case in a manner which has heretofore been non-existent. A prisoner also will be more likely to take advantage of the Inmate Legal Services Project of the Texas State Bar, which is an administrative remedy providing attorneys at no cost to the inmate. The Staff Counsel attorneys at the TDC may also be given more serious consideration by the inmate in an attempt to air his non-prison related complaints without expense.

A. Partial Payment of Court Costs

The permissive language of 28 U.S.C. § 1915 authorizes the court, in its discretion, to determine who is entitled to the benefits of litigation without cost. Judicial construction of the statute...