Green v. Estelle, 275416
| Decision Date | 29 June 1981 |
| Docket Number | No. 80-1316,I,No. 275416,275416,80-1316 |
| Citation | 649 F.2d 298 |
| Parties | Isiah Carl GREEN,ndividually and on behalf of all others similarly situated, Plaintiff-Appellant, v. W. J. ESTELLE, Jr., etc. et al., Defendants-Appellees. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
Avarita L. Hanson, Fulbright & Jaworski (Court-appointed), Houston, Tex., for plaintiff-appellant.
Kenneth L. Petersen, Jr., Asst. Atty. Gen., Austin, Tex., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Texas.
Before COLEMAN, AINSWORTH and SAM D. JOHNSON, Circuit Judges.
Isiah Carl Green is a paraplegic prisoner serving a life sentence in the Huntsville Unit of the Texas Department of Corrections. Because of his condition, he is permanently assigned to the hospital ward and suffers various restrictions not placed on the general prison population. In this action, brought under 42 U.S.C. § 1983, he asserts that he is subject to cruel and unusual punishment and denial of equal protection because of his handicap. Specifically, he asserts that he should not be permanently assigned to the hospital ward because he is not sick; that he should not be subject to the dress, food, television, visitation, and other restrictions that are placed on those assigned to the hospital ward; that he is denied access to religious services, and that he is denied access to the law library.
The magistrate reviewed a computer printout of Green's inmate trust account and determined that Green could pay $12 of the $30 charge for filing and serving his complaint. Green complied, but simultaneously filed a motion for reconsideration or for leave to take an interlocutory appeal, both of which were denied by the district judge. Had Green not complied, his complaint would have been subject to dismissal.
After responsive pleadings were filed, the district court dismissed the complaint as "malicious" pursuant to 28 U.S.C. § 1915(d). The court determined that the majority of Green's allegations were raised in an action already pending before that court, No. H-78-1926. Green was advised that he should have moved to amend his pleadings in the already-pending action. Green's motion to appeal in forma pauperis was denied by the district court but granted by this Court. On appeal, Green argues that (1) the district court erred in dismissing his complaint as "malicious"; and (2) the district court abused its discretion in requiring him to make a partial payment of the filing and service fees.
On October 5, 1978, Green filed his first complaint, No. H-78-1926, against W.J. Estelle Jr., Director of the Texas Department of Corrections, G.P. Hardy, Assistant Warden of the Huntsville Unit, and E.L. Driver, Hospital Administrator at the Huntsville Unit. The October 5 complaint alleges that defendants violated Green's due process rights by placing him in "administrative segregation" after Green had filed grievances with the prison administration concerning his lack of access to religious services and the law library. In the October 5 complaint, Green also alleges that the conditions of his confinement in "administrative segregation" constituted cruel and unusual punishment.
Green was subsequently moved from "segregation row" and returned to his permanent housing in the prison hospital. Green then filed his second complaint, No. H-79-1378, which is the basis of the present action. This complaint, which was filed on June 29, 1979, challenges the constitutionality of applying various restrictive hospital rules and regulations to Green simply because he is handicapped and permanently housed in the hospital. 1 Acting sua sponte, the district court dismissed Green's complaint in the present action as "malicious" pursuant to 28 U.S.C. § 1915(d).
Section 1915(d) authorizes a district court to dismiss an action prosecuted in forma pauperis if the court is "satisfied that the action is frivolous or malicious " The district court offered three reasons for dismissing Green's complaint as "malicious": (1) the presence of Green's prior pending complaint made the instant complaint "entirely redundant"; (2) the pleadings of the instant suit were a "conglomeration of fragments from the prior suit"; and (3) Green's instant suit was "patently malicious" because it was repetitious litigation of identical causes of action. Comparison of the two complaints, however, reveals that they state distinct, although related, claims: Whereas the first complaint arguably alleges that defendants responded to Green's filing of grievances with the prison administration by housing him in administrative segregation without affording Green an opportunity to contest his "protection" status, and also complains of the dangerous and unsanitary conditions that paraplegics housed in administrative segregation are exposed to, the second complaint attacks Green's permanent assignment to the hospital ward, and asserts that otherwise healthy paraplegics should not be assigned to the hospital ward, and thereby subject to its restrictions on clothing, television, commissary visitation, and other privileges.
It appears possible, if not probable, that Green properly could have amended his first complaint to include the allegations of the second complaint. It does not appear, however, that Green's election to forego this option, and instead to file a second complaint, can be deemed "malicious" within the meaning of the statute. Moreover, this Court has been unable to find any decision in which, on the basis of a single prior pending complaint, the filing of a subsequent complaint was held to be "malicious." Hill v. Estelle, 423 F.Supp. 690 (S.D.Tex.1976), relied upon by the district court, is inapposite. Following this Court's affirmance of the district court's dismissal of a prior complaint, plaintiffs in Hill, within ten days, filed a second complaint in the district court that was, both in wording and substance, practically identical to the first. Moreover, plaintiffs in Hill had failed to respond truthfully to questions in the form complaint concerning prior lawsuits filed by those plaintiffs. The district court in Hill also noted that, in the preceding two years, one of the plaintiffs had been a party in eighteen prior suits, while the other had participated in thirteen, all but one of which were filed pro se. Based upon the foregoing, the district court in Hill concluded that plaintiffs were "using the courts as a stage for their vendetta of harassment or abuse," and that plaintiffs "maliciously filed a complaint as to previously litigated matters in order to abuse the judicial process " 423 F.Supp. at 695. In...
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