Freeman v. Abdullah, 90-2327
| Decision Date | 08 February 1991 |
| Docket Number | No. 90-2327,90-2327 |
| Citation | 925 F.2d 266 |
| Parties | Kenneth FREEMAN (Hassan Muhammad), on Behalf of himself and the Muslim Community (Muslim Nation) members, Appellant, v. Alim ABDULLAH, Muslim coordinator for the Nebraska State Penitentiary, Jack Falkner, Director of Corrections, Harold Clarke, Warden, of the State Penitentiary, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Kenneth Freeman, pro se.
Marie C. Pawol, Asst. Atty. Gen., Lincoln, Neb., for appellees.
Before McMILLIAN, FAGG and MAGILL, Circuit Judges.
Kenneth Freeman (Hassan Muhammad), an inmate at the Nebraska State Penitentiary (NSP), appeals from the order entered by the District Court for the District of Nebraska dismissing, prior to service of process, his 42 U.S.C. Sec. 1983 complaint against prison officials for violation of his constitutional rights to equal protection and to freely exercise his Muslim religion. For the reasons discussed below, we reverse and remand the case to the district court with directions.
Freeman filed the instant complaint alleging that dissolution of a particular Muslim sect at NSP violated his first and fourteenth amendment rights because, inter alia, it deprived him of religious classes, Jummah prayer, and Ramadan fasting. Freeman sought in forma pauperis status. After noting a present institutional balance of $.20 and an average income of $65.00 over a period of six months, the magistrate judge ordered Freeman to pay a partial filing fee of $16.25. The magistrate judge subsequently recommended that Freeman's claims be dismissed as frivolous under 28 U.S.C. Sec. 1915(d). The district court dismissed for failure to state a claim upon which relief could be granted.
Upon review of the record, we conclude that the district court erred in adopting the magistrate judge's recommendation to dismiss Freeman's complaint prior to service of process. A complaint can be dismissed prior to service or process only if it is frivolous under 28 U.S.C. Sec. 1915(d). Divers v. Department of Corrections, 921 F.2d 191, 193 (8th Cir.1990) (per curiam), citing Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989). Here there is an arguable basis underlying Freeman's factual allegations and legal theories. See Saleem v. Evans, 866 F.2d...
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Ehlers v. U.S. Navy
...been completed, see Smith v. Boyd, 945 F.2d 1041, 1042-43 (8th Cir. 1991), but such dismissals are disfavored, see Freeman v. Abdullah, 925 F.2d 266, 267 (8th Cir. 1991), and there is "no support for the district court to conduct an initial review of all nonprisoner pro se fee-paid complain......
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Johnson v. STATE OF NEB., DEPT. OF CORR. SERV., 4:CV92-3263.
...858 (8th Cir.1982) (per curiam) (proper to dismiss sua sponte prior to service of process); to Smith v. Boyd, supra; Freeman v. Abdullah, 925 F.2d 266 (8th Cir.1991). Insofar as this court's practices are concerned, I conclude that when sua sponte dismissals are appropriate, they can, and s......
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Tyler v. City of Omaha
...Court of Appeals have placed additional limitations on the availability of at least some sua sponte dismissals. In Freeman v. Abdullah, 925 F.2d 266 (8th Cir.1991); Divers v. Department of Corrections, 921 F.2d 191 (8th Cir.1990) (per curiam); and Williams v. White, 897 F.2d 942 (8th Cir. 1......
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Porter v. Fox, 95-4246
...frivolous. See Addison v. Pash, 961 F.2d 731, 732 (8th Cir.1992); Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir.1991); Freeman v. Abdullah, 925 F.2d 266, 267 (8th Cir.1991); see also Wabasha v. Smith, 956 F.2d 745, 745 (8th Cir.1992) (per curiam) (majority held claims were frivolous and thus ......