Green v. City of Montezuma, Georgia, 81-7096

• Decision Date: 13 July 1981
• Docket Number: No. 81-7096,81-7096
• Citation: 650 F.2d 648
• Parties: Patricia GREEN, Plaintiff-Appellant, v. The CITY OF MONTEZUMA, GEORGIA, et al., Defendants-Appellees. Summary Calendar. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 648

650 F.2d 648

Patricia GREEN, Plaintiff-Appellant, v. The CITY OF MONTEZUMA, GEORGIA, et al., Defendants-Appellees.

No. 81-7096

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit B

July 13, 1981.

Patricia Barron, Georgia Legal Services Program, Americus, Ga., James Head, Willie Abrams, Columbus, Ga., William J. Cobb, John L. Cromartie, Jr., Atlanta, Ga., for plaintiff-appellant.

Walter S. Chew, Jr., City Atty., Montezuma, Ga., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before HILL, FAY and ANDERSON, Circuit Judges.

PER CURIAM:

Appellant, Patricia Green, sought the benefit of the in forma pauperis (IFP) statute, 28 U.S.C.A. § 1915 (West 1966), ¹ in filing this civil rights suit pursuant to 42 U.S.C.A. § 1983 (West 1974). The district court found Green's complaint to be legally frivolous and denied her application to proceed IFP. We find the district court to have erred, and we reverse and remand.

Appellant Green's complaint alleges the following facts. Green is a resident of Montezuma, Georgia. Montezuma owns and operates the gas and water and sewerage utilities serving its citizens. Green alleges that in October, 1977, the city, without any prior notice, opportunity for an evidentiary hearing, or appropriate findings with regard to the basis for termination, terminated her water, sewerage and gas services. Although her water and sewerage services have been terminated, she alleges the city has continued to charge her the minimum rate for these services pursuant to Ordinance No. 54. ² The city has consistently refused to restore any service until Green has paid her account in full on all services. In December, 1979, Green obtained a monetary grant from the Energy Crisis Assistance Program ("ECAP") through the Macon County Department of Family and Children Services. Pursuant to this grant, ECAP made a $200 payment to the city. The city deemed the payment to be only for Green's gas bill and informed her it would not be accepted because it could not be applied toward her total utility bill. The city returned this payment to the Department of Human Resources.

Green seeks declaratory and injunctive relief, actual monetary damages, and punitive damages. She claims that the termination without notice violates her procedural due process rights, that the policy of refusing to restore any individual service until all utility bills are paid violates substantive due process, and that Ordinance No. 54, in presuming the use of water and authorizing charges for services not furnished or rendered, violates substantive due process. Green also alleges a pendent state claim.

The district court did not rule on whether Green qualified for IFP status. Instead, it apparently turned immediately to a determination of frivolousness as provided in 28 U.S.C.A. § 1915(d). The district court apparently misread Green's complaint, stating:

Her dispute now seems to be as to the amount of money she must pay for her utilities to again be connected.

The plaintiff can sue the defendants in the courts of this state for the purpose of a determination being made as to how much money she must lawfully pay for her utility services to be reconnected In view of this, it is this court's considered judgment that plaintiff's constitutional claim is de minimus and not sufficient in magnitude to invoke the jurisdiction of this United States Court. In the court's best judgment, plaintiff's complaint in its entirety is legally frivolous and may not proceed in forma pauperis.

After finding the complaint frivolous, the district court ordered that the complaint and IFP application be filed "for record purposes only." ³ This court granted Green leave to appeal IFP.

Section 1915(d) provides a district court a measure of control over IFP suits by allowing the court to dismiss a case when an action is frivolous or malicious. A court's authority to dismiss under § 1915(d) is broader than dismissal under Fed.R.Civ.P. 12. Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972), aff'd. for reasons stated in district court order, 480 F.2d 805 (5th Cir. 1973); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979). There are good reasons for this broader grant of power to dismiss. Persons proceeding IFP need not pay the customary costs of other litigants. This, of course, increases the temptation to file complaints with facts which cannot be proved or claims which are legally questionable. See Jones v. Bales, supra. ⁴ Nevertheless, in evaluating the legal sufficiency of a complaint for purposes of § 1915(d), we apply the customary standard enunciated in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957), that:

a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Watson v. Ault, supra; Covington v. Cole, 528 F.2d 1365 (5th Cir. 1976). Reviewing Green's complaint, we conclude it adequately sets forth allegations that, if proved, may entitle her to some relief. Memphis Light, Gas & Water Division v. Kraft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978), requires municipal utilities not to terminate service without procedural due process protection for those with a property interest in such services. Moreover, we conclude that Green's attack on Ordinance No. 54 creating a presumption that all residents of Montezuma use city water and charging a minimum rate even for those without service, not frivolous and deserves fuller development.

We offer no view as to the merits of Green's allegations. We only hold that she is entitled to have her complaint filed and the suit to proceed normally.

REVERSED AND REMANDED.

1 28 U.S.C.A. § 1915 (West 1966) provides in pertinent part:

(a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of...