Brandon v. District of Columbia Bd. of Parole

• Decision Date: 08 May 1984
• Docket Number: No. 83-1100,83-1100
• Parties: Roosevelt BRANDON, Appellant, v. DISTRICT OF COLUMBIA BOARD OF PAROLE, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 56

734 F.2d 56

236 U.S.App.D.C. 155

Roosevelt BRANDON, Appellant, v. DISTRICT OF COLUMBIA BOARD OF PAROLE, et al.

No. 83-1100.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 24, 1984.

Decided May 8, 1984.

On Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-00007).

Andrew J. Pincus, New York City (Appointed by this Court), with whom Gerald Goldman, Washington, D.C., was on the brief, for appellant.

Edward E. Schwab, Asst. Corporation Counsel, Washington, D.C., with whom Charles L. Reischel, Deputy Corporation Counsel, Washington, D.C., was on the brief, for appellees.

Before WALD and MIKVA, Circuit Judges, and VAN DUSEN, ^* Senior Circuit Judge for the Third Circuit.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Appellant Roosevelt Brandon filed a pro se complaint seeking declaratory, injunctive, and monetary relief against the District of Columbia Board of Parole (the Board) and its individual members for alleged violations of 42 U.S.C. Sec. 1983. Brandon claimed that the District of Columbia parole process is subject to the due process clause of the Fifth Amendment and that the Board's delay in considering his case, its failure to supply adequate reasons for its parole decisions respecting him, and its failure to reparole him in the same time period in which other similarly situated prisoners were reparoled violated his constitutional rights. The district court granted Brandon leave to proceed in forma pauperis Brandon is not a sympathetic plaintiff. In 1966 he was convicted of murder and sentenced to a term of ten to thirty years. He was paroled in April 1975. Shortly after that, on November 11, 1975, he was arrested and charged with the offense of rape while armed. He pleaded guilty to that charge and received a consecutive sentence of ten to thirty years. Prior to the imposition of this sentence, the Board revoked Brandon's original parole. Because Brandon's second sentence was to be consecutive with his first, he could not begin serving his second term until he had served out his time on the first sentence or was reparoled on the first conviction. Brandon came before the Board for reparole five times between November 15, 1976 and February 21, 1980 before he was finally reparoled.

ut then dismissed the complaint sua sponte before it was served on the defendants. We reverse that sua sponte dismissal and remand for fuller consideration of the merits of his claim. As we have repeatedly emphasized, sua sponte dismissal of a pro se complaint is warranted only when a prisoner's claim is "frivolous" or "malicious," 28 U.S.C. Sec. 1915(d), and this is clearly not such a case.

Brandon alleged that the average parole violator in his circumstances would have been reparoled in twenty-four months rather than the nearly four year wait to which he was subjected. Specifically, Brandon asserted that the failure to reparole him before 1980 "departed from Board rules and regulations and/or customary reparoling policy ...." Record Excerpts at 7. As part of his prayer for relief, Brandon asked for an order that the Board amend his certificate of parole to reflect reparole after twenty-four months. He also sought punitive and compensatory damages against the Board members.

The district court dismissed the action sua sponte with the following terse statement:

Dismissed. States no cause of action. Parole Board is completely justified in getting all the information it can get on a prisoner who has been convicted of murder and rape while armed.

As this statement reveals and as the Board admits, "the District Court appeared to be less concerned with appellant's [constitutional claims] than with the nature of his crimes." Appellee Brief at 5. The fact that Brandon is not a sympathetic plaintiff, however, does not justify suspending the Constitution with respect to him. Because Brandon's complaint cannot be labelled frivolous or malicious, the Board should be required to answer Brandon's complaint, and the district court should, after whatever fact finding proves necessary, address the merits of the substantial constitutional questions presented by this case.

DISCUSSION

Brandon's complaint was brought into federal court under the auspices of 28 U.S.C. Sec. 1915, which authorizes federal courts to entertain actions in forma pauperis in an effort to assure that "no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, 'in any court of the United States' 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). At the same time that it sought to lower judicial access barriers to the poor, Congress was also concerned that opening the courthouse doors at no cost might lead to a flood of insubstantial or malicious lawsuits. In response to this concern, Congress included in Section 1915 a provision allowing early dismissal of those claims which "the court ... is satisfied [are] frivolous or malicious." 28 U.S.C. Sec. 1915(d). As the Third Circuit has cogently explained, however, this provision does not "permit a cursory treatment of meritorious complaints. When a viable complaint is filed in forma pauperis, the pauper must be treated like all other litigants in the decision to dismiss." McTeague v. Sosnowski, 617 F.2d 1016, 1019 (3d Cir.1980) (emphasis added). The discretion to dismiss sua sponte "may not be exercised arbitrarily and is limited ... in every case by the language of the statute itself which restricts its application to complaints found to be 'frivolous or malicious.' " Boyce v. Alizaduh, 595 F.2d 948, 951 (4th Cir.1979).

In this case, there is nothing in the complaint itself or in the district court's summary dismissal of it to suggest that the complaint was malicious. Accordingly, the district court's sua sponte dismissal can be sustained only if Brandon's complaint can be styled frivolous.

This circuit has not yet defined with precision the test for frivolity under Section 1915(d). We did recognize in Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981), that "[a] court may dismiss as frivolous complaints reciting bare legal conclusions with no suggestion of supporting facts, or postulating events and circumstances of a wholly fanciful kind." (emphasis added). But under the notice theory of pleading, it is not necessary that those facts be identified with specificity in the complaint itself. If it appears that the complainant could, after discovery, offer facts which would validate the complaint, sua sponte dismissal is premature.

It is also true that "[a] pro se complaint, like any other, must present a claim upon which relief can be granted by the court." Id. That statement, however, cannot be taken to mean that a frivolous complaint is one which could not survive a Rule 12(b)(6) motion to dismiss. On the contrary, the test for frivolity cannot be the same as the test for whether a complaint would survive a 12(b)(6) motion to dismiss. When a Rule 12(b)(6) motion is filed, the plaintiff is put on notice that the legal sufficiency of the complaint is being challenged and is often given some insight into the theory upon which that challenge is made. The plaintiff then has an opportunity to develop his claim further by filing an opposition to the Rule 12(b)(6) motion. Alternatively, the plaintiff may seek to show that decision on the motion would be premature before the facts were further drawn out through discovery. Neither of these opportunities, nor the sharply honed adversarial exchange involved in a Rule 12(b)(6) motion and opposition, are present when dismissal is sua sponte. Sua sponte dismissal is therefore a much more truncated process than is dismissal under Rule 12(b)(6). In giving effect to the intent with which Congress created the narrow exception in section 1915(d) for sua sponte dismissals, this difference must be taken into account. Accordingly, we hold that a complaint need not indisputably state a cause of action to survive sua sponte dismissal; instead, if the complaint has at least an arguable basis in law and fact--if the complaint is viable--it cannot be deemed frivolous. See Watson v. Ault, 525 F.2d 886 (5th Cir.1976) (adopting same standard); cf. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (defining frivolous appeal as one without "arguable" merit). Instead, the filing of responsive papers should be required and the normal course of litigation pursued. Following this course assures that proper adversarial attention is paid to the question whether a cause of action exists and facilitates appellate review of this question. This is particularly true when the existence vel non of the cause of action depends on the resolution of factual issues. If discovery and the creation of an evidentiary record could affect disposition of the legal questions raised, sua sponte dismissal is wholly unwarranted. Dismissal of pro se suits under the frivolous standard must therefore be reserved for those cases in which there is indisputably absent any factual and legal basis for the asserted wrong.

Judged by these standards, Brandon's complaint was improperly shortcircuited. One of Brandon's allegations was that he had been denied "due process of law because the Defendants ... have violated normal parole custom and adjective rules and regulations." Record Excerpts at 4. The complaint developes this allegation further when it states that "the Board's stated reasons for this denial were defective and the decisions departed from Board rules and regulations and/or customary reparoling policy, that is, Plaintiff had served the average violator time required by the Board." Id. at 7. As his appointed counsel points out on appeal, construed under the liberal rules applicable to pro se pleadings, see ...