Franklin v. Murphy, Nos. 83-3939

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore SNEED, ALARCON and NORRIS; ALARCON
Citation745 F.2d 1221
PartiesHarry FRANKLIN, Plaintiff-Appellant, v. Ms. MURPHY and Hoyt Cupp, et al., Defendants-Appellees. to 83-3978.
Docket NumberNos. 83-3939
Decision Date23 October 1984

Page 1221

745 F.2d 1221
Harry FRANKLIN, Plaintiff-Appellant,
v.
Ms. MURPHY and Hoyt Cupp, et al., Defendants-Appellees.
Nos. 83-3939 to 83-3978.
United States Court of Appeals,
Ninth Circuit.
Submitted July 5, 1984.
Decided Oct. 23, 1984.

Page 1225

Harry Franklin in pro per.

Appeal from the United States District Court for the District of Oregon.

Before SNEED, ALARCON and NORRIS, Circuit Judges.

ALARCON, Circuit Judge:

This appeal involves a district court's dismissal of 41 actions filed by Harry Franklin, a prisoner pro se. To dispose of Franklin's appeal we must decide whether the district court erred by dismissing Franklin's in forma pauperis actions as frivolous before issuing a summons and whether a court may dismiss as frivolous an in forma pauperis complaint that states a cause of action. We hold that a court may dismiss a frivolous in forma pauperis action before service of process pursuant to the in forma pauperis statute, 28 U.S.C. Sec. 1915(d). We also define a frivolous action under Sec. 1915(d) as an action lacking arguable basis in law or in fact.

FACTS

Harry Franklin is a prisoner in the Oregon State Penitentiary. By 1980, he had filed and paid fees in 37 cases concerning his treatment in prison. On May 29, 1980, the district court dismissed 33 of these cases before Franklin had served summons on the defendants. Franklin appealed and we reversed and remanded 11 of these actions, we held that a district court can only dismiss an action sua sponte before service of process when it clearly lacks jurisdiction. Franklin v. State of Oregon, State Welfare Division, et al., 662 F.2d 1337 (9th Cir.1981) (Franklin I ). On January 11, 1982, the district court calendared the 11 remanded cases and reopened and reinstated four other cases that had not been appealed but which it had dismissed as frivolous. 1 The court also granted Franklin in forma pauperis (IFP) status and permitted him to file 49 additional actions. The district court characterized three of these actions as habeas corpus petitions. The remainder are civil rights actions brought pursuant to 42 U.S.C. Sec. 1983.

Franklin requested and was assigned an attorney. They apparently had some disagreements. Franklin filed a complaint against his appointed counsel with the Oregon State Bar. The district court granted the attorney's request to withdraw. Franklin then requested that new counsel be appointed. The court denied his motion.

On May 25, 1983, the court dismissed 61 of Franklin's actions on summary judgment, for failure to prosecute, as repetitious, or as frivolous under 28 U.S.C. Sec. 1915(d). 2 The court allowed Franklin to proceed on three actions and gave him 30 days to amend the actions dismissed under section 1915(d). The court further ordered that Franklin was limited to six in forma pauperis complaints per year. Franklin v. State of Oregon, 563 F.Supp. 1310 (D.Or.1983) (Franklin II ). Franklin did not amend his complaints and the judgments of dismissal were entered. Franklin appeals the dismissal of 40 of his actions, the denial of his request for appointment of counsel, and the order limiting his number of IFP filings. 3

I

Section 1915(d) Dismissals

A. Procedural Protections under Section 1915(d)

In Franklin I we left open the question whether a court may dismiss a

Page 1226

frivolous IFP action sua sponte before service of process on the defendants. Franklin v. State of Oregon, 662 F.2d 1337, 1340 n. 1 (9th Cir.1981). We now decide that it may.

Where the plaintiff has paid the filing fees, the court may not dismiss an action before process is issued and served, and without giving plaintiff notice that the court intends to dismiss, an opportunity to oppose it, a statement of the grounds for dismissal, and an opportunity to amend. Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir.1970). The court may dismiss such an action without following the Potter procedures only when the court lacks subject matter jurisdiction. Franklin I, 662 F.2d at 1342.

A court may authorize a person who is unable to pay the costs of suit to proceed in forma pauperis. 28 U.S.C. Sec. 1915(a). The statute also authorizes the court to dismiss an IFP action that is frivolous or malicious, but it does not indicate whether any procedural protections are required before such a dismissal. See 28 U.S.C. Sec. 1915(d). 4

The district court dismissed 24 of Franklin's cases under section 1915(d) before the court issued or served process, ruling that the in forma pauperis statute gives courts a broader discretion to dismiss frivolous actions filed at the court's expense.

In Franklin I, we disapproved of the court's sua sponte dismissal of actions where the fees have been paid before service of process because such procedure eliminates the traditional adversarial relationship, causes inefficiencies in the judicial process, and gives the appearance that the court is a proponent rather than an independent entity. Franklin I, 662 F.2d at 1341-42. But where the plaintiff is proceeding in forma pauperis, the impact of additional factors must be considered. Most importantly, IFP plaintiffs are immune from the economic deterrents to filing frivolous lawsuits, such as assignment of costs of suit and tort liability for abuse of process. In forma pauperis actions also involve more of the court's own resources. See Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir.1983) (Cardamone, J., no judges joining opinion). Section 1915(d) therefore gives courts "an extra measure of authority in dealing with such actions." Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.1979).

The Prisoner Civil Rights Committee of the Federal Judicial Center recommends that the court make the frivolity determination before issuing process to protect defendants from the expense and inconvenience of answering a frivolous complaint. Federal Judicial Center, Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts 59 (1980).

Most of the circuits that have considered the question follow the procedures recommended by the Federal Judicial Center and permit dismissal of frivolous IFP actions before issuance of process. See Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir.1982) (per curiam); Collins v. Cundy, 603 F.2d at 827-28 (10th Cir.1979) (per curiam); Boyce v. Alizaduh, 595 F.2d 948, 950 (4th Cir.1979); Watson v. Ault, 525 F.2d 886, 893 (5th Cir.1976). But see Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983); Lewis v. New York, 547 F.2d 4, 5 (2d Cir.1976) (error to dismiss under section 1915(d) before service of process, notice, and an opportunity to respond). 5

Page 1227

We find persuasive the reasoning of the cases holding that courts may dismiss frivolous actions filed in forma pauperis before service of process and adopt the procedure recommended by the Federal Judicial Center and applied here by the district court.

B. Definition of Frivolous

The standard in this circuit for dismissal of in forma pauperis actions as frivolous under section 1915(d) has been as unsettled as our position on the proper procedure to be followed in such dismissals. See Gifford v. Tiernan, 670 F.2d 882, 885 n. 7 (9th Cir.), cert. denied, 459 U.S. 804, 103 S.Ct. 28, 74 L.Ed.2d 43 (1982); Franklin I, 662 F.2d 1337, at 1340 n. 1. Our cases have suggested that an IFP action may be dismissed as frivolous: (1) when, despite a formally alleged cause of action, the court finds the action is frivolous, Stiltner v. Rhay, 322 F.2d 314, 316 (9th Cir.1963), cert. denied, 376 U.S. 920, 84 S.Ct. 678, 11 L.Ed.2d 615 (1964); (2) when the complaint fails to state a claim according to Fed.R.Civ.P. 12(b)(6), Boag v. Boies, 455 F.2d 467 (9th Cir.), cert. denied, 408 U.S. 926, 92 S.Ct. 2509, 33 L.Ed.2d 338 (1972); and (3) only when the fees have been paid, Reece v. Washington, 310 F.2d 139, 140 (9th Cir.1962). 6 We attempt here to resolve the confusion these cases have created for the district courts by defining the frivolity standard for IFP actions.

We agree with the district court that the rule from Franklin I, that where the plaintiff has paid the fees and his complaint states jurisdictional facts, the court may not sua sponte dismiss such an action before issuing and serving process, is "simply far too easy" a standard to apply to IFP actions. Franklin II, 563 F.Supp. 1310, 1325 (D.Or.1983). 7 We disagree, however, with the standard applied here by the district court. The district court, quoting from Daves v. Scranton, 66 F.R.D. 5, 7 (E.D.Pa.1975), defined a nonfrivolous IFP complaint as one that, "[S]tates a claim which has a reasonable probability of succeeding on the merits .... In evaluating this complaint I must assess inter alia, the merit of plaintiff's legal theory, the credibility of his allegations, as well as the existence of possible defenses ...." Franklin II, 563 F.Supp. at 1323-24. We reject this standard because it would give trial courts almost unreviewable discretion. See Williams v. Field, 394 F.2d 329, 331 (9th Cir.), cert. denied, 393 U.S. 891, 89 S.Ct. 213, 21 L.Ed.2d 171 (1968) (rejecting definition of frivolity as slight chance of success on the merits).

Most of the circuits that have addressed the issue have applied a modified form of the frivolity test from Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967) (appeal is frivolous where it lacks "arguable merit"), to section 1915(d) dismissals. In Watson v. Ault, 525 F.2d 886, 892 (5th Cir.1976), the court held that an IFP action must have arguable substance in law and fact. It described the trial court's determination of the frivolity of pro se prisoners' civil rights actions under section 1915(d) as "an assessment of the substance of the claim presented, i.e., is there a factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded." Id. Accord Crisafi v. Holland, 655 F.2d 1305, 1307 (D.C.Cir.1981) (per curiam); Boyce v. Alizaduh, 595 F.2d 948...

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  • Quiroga v. Graves, 1:16-cv-00234-DAD-GSA-PC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 15, 2018
    ...were arbitrary and capricious, id., or that they were "unnecessary to the maintenance of order in the institution," Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984)."Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012). The court must "'afford appropriate deference and flexibili......
  • Powell v. Cnty. of Solano, No. 2:19-cv-2459 DB P
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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 20, 2020
    ...frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory o......
  • Lepp v. Yuba Cnty., No. 2:17-cv-1317-KJM-EFB PS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 11, 2019
    ...F.3dPage 16 at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. Erickson v. Pardus, 551 U......
  • Bryan v. Def. Tech. U.S, No. CIV S-10-2241 KJM GGH P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 10, 2011
    ...notice and an opportunity to amend before dismissal. See Noll v. Carlson, Page 8 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984). However, while the pleadings of pro se litigants are construed liberally, Abassi v. I.N.S., 305 F.3d 1028, 1032 (9th......
  • Request a trial to view additional results
6503 cases
  • Quiroga v. Graves, 1:16-cv-00234-DAD-GSA-PC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 15, 2018
    ...were arbitrary and capricious, id., or that they were "unnecessary to the maintenance of order in the institution," Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984)."Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012). The court must "'afford appropriate deference and flexibili......
  • Powell v. Cnty. of Solano, No. 2:19-cv-2459 DB P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 20, 2020
    ...frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory o......
  • Lepp v. Yuba Cnty., No. 2:17-cv-1317-KJM-EFB PS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 11, 2019
    ...F.3dPage 16 at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. Erickson v. Pardus, 551 U......
  • Bryan v. Def. Tech. U.S, No. CIV S-10-2241 KJM GGH P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 10, 2011
    ...notice and an opportunity to amend before dismissal. See Noll v. Carlson, Page 8 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984). However, while the pleadings of pro se litigants are construed liberally, Abassi v. I.N.S., 305 F.3d 1028, 1032 (9th......
  • Request a trial to view additional results

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