Green v. McKaskle

• Decision Date: 05 May 1986
• Docket Number: No. 84-2172,84-2172
• Citation: 788 F.2d 1116
• Parties: Isiah Carl GREEN, Plaintiff-Appellant, v. Dan V. McKASKLE, Acting Director, Texas Department of Corrections, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1116

788 F.2d 1116

Isiah Carl GREEN, Plaintiff-Appellant, v. Dan V. McKASKLE, Acting Director, Texas Department of

Corrections, et al., Defendants-Appellees.

No. 84-2172.

United States Court of Appeals, Fifth Circuit.

May 5, 1986.

Charles Dewey Cole, Jr., Mineola, N.Y., for plaintiff-appellant.

Isiah C. Green, pro se.

Donna Brorby, William Bennett Turner, San Francisco, Cal., and Joel Berger, N.A.A.C.P. Legal Defense Fund, New York City, for amicus-class of plaintiffs in Ruiz v. McCotter.

Jim Mattox, Atty. Gen., Adrian L. Young, Asst. Atty. Gen., Austin, Tex., and Dennis Dimsey, Atty., Dept. of Justice, Bethesda, Md., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, REAVLEY and GARWOOD, Circuit Judges.

REAVLEY, Circuit Judge:

This appeal comes from judgment in one of the thousands of prisoner civil rights cases on the district court dockets of this circuit. Most of these cases are lying dormant because of the hopelessness of applying the usual rules to incoherent and undecipherable pro se complaints, frequently false and frivolous. In other instances the court does give the case attention, but only by looking at the complaint, deciding its probable lack of merit, and dismissing on the ground of frivolousness or failure to state a claim.

Where the prisoner has not been required and allowed to state the specifics of his claim, dismissal at this stage may be premature and require reversal on appeal. That is our view of the present appeal. After collating Isiah Green's complaints throughout five volumes of record, we are compelled to remand some of those claims to the district court. Before addressing Green's complaints, we review the proper method of screening pro se prisoner civil rights suits. It employs procedures under 28 U.S.C. Sec. 1915(d) (1982) and Fed.R.Civ.P. 12(b)(6) that have been made available by this court during the intervening years of the present litigation.

I. SCREENING THE PRO SE COMPLAINT: Sec. 1915(d) AND RULE 12(b)(6)

In Spears v. McCotter, 766 F.2d 179 (5th Cir.1985), this court encouraged the district courts to flesh out the conclusory statements in pro se pleadings, using interrogatories as well as evidentiary hearings to do so, prior to deciding whether the prisoner can state a claim to satisfy Rule 12(b)(6). Even if a claim is stated, it may fail under Sec. 1915(d) because of frivolousness. The latitude of the district court in screening these cases for this determination bears particular attention.

Title 28 U.S.C. Sec. 1915(d) allows a litigant to commence an action in federal court in forma pauperis (IFP) if he is unable to afford the cost of litigation. To ensure that this provision is not abused, Congress authorized district courts to dismiss an IFP proceeding under Sec. 1915(d) "if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." A district court may dismiss an IFP proceeding for frivolousness or maliciousness at any time, before or after service of process and before or after the defendant's answer. See Spears, 766 F.2d at 180 n. 1 (5th Cir.1985); Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.1983); Brown v. Schneckloth, 421 F.2d 1402, 1403 (9th Cir.), cert. denied, 400 U.S. 847, 91 S.Ct. 95, 27 L.Ed.2d 85 (1970).

It is, of course, not always easy to determine whether a claim is frivolous simply by examining the pleadings. Prisoner complaints are notoriously difficult to decipher, and pro se pleadings must be construed liberally. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Unless the frivolousness of a claim is facially apparent, it is "incumbent upon the court to develop the case and to sift the claims and known facts thoroughly until completely satisfied either of its merit or lack of same." Jones v. Bales, 58 F.R.D. 453, 464 (N.D.Ga.1972), aff'd by adopting the district court's reasoning, 480 F.2d 805 (5th Cir.1973). In Watson v. Ault, 525 F.2d 886, 893 (5th Cir.1976), we approved the use of a questionnaire to develop the factual basis of a prisoner's complaint. Use of such questionnaires is now standard practice in this circuit.

To further aid in the development of the facts of a case, in Spears we authorized district courts to direct magistrates to hold an evidentiary hearing to determine if a claim is frivolous under Sec. 1915(d). It was our belief that a "magistrate's findings and recommendations should prove of greater aid than a prisoner's written answers on a questionnaire." 766 F.2d at 182. After the hearing, if the facts so indicate, the magistrate may recommend that IFP status be revoked. Id. at 180 n. 1.

District courts are vested with especially broad discretion in making the determination of whether an IFP proceeding is frivolous. See Jones v. Bales, 58 F.R.D. at 464; Watson v. Ault, 525 F.2d at 891-92; Montana v. Commissioners Court, 659 F.2d 19 (5th Cir.1981); Holloway v. Gunnell, 685 F.2d 150 (5th Cir.1982). This circuit is not alone in granting such broad discretion. See, e.g., Anderson v. Coughlin, 700 F.2d 37 (2d Cir.1983); Collins v. Cundy, 603 F.2d 825 (10th Cir.1979); Milton v. Nelson, 527 F.2d 1158 (9th Cir.1976); Daye v. Bounds, 509 F.2d 66 (4th Cir.), cert. denied, 421 U.S. 1002, 95 S.Ct. 2404, 44 L.Ed.2d 671 (1975). Broad discretion is necessary because "[t]he Federal Rules of Civil Procedure are inadequate to protect the courts and defendants ... from frivolous litigation from indigent prisoners." Jones v. Bales, 58 F.R.D. at 463.

Unlike most litigants, prisoners have everything to gain and nothing to lose by filing frivolous suits. Filing a suit in forma pauperis costs a prisoner little or nothing; time is usually of little importance to a prisoner and prisoners are not often deterred by the threat of possible sanctions for malicious or frivolous actions or perjury. Moreover, a prisoner, while he may be unsuccessful, can at least look forward to "a short sabbatical in the nearest federal courthouse." Cruz v. Beto, 405 U.S. 319, 327, 92 S.Ct. 1079, 1084, 31 L.Ed.2d 263, 271 (1972) (Rehnquist, J., dissenting). Thus, the temptation to file frivolous or malicious suits is strong, and these suits clutter up the federal courts, wasting scarce and valuable judicial resources, subjecting prison officials unnecessarily to the burdens of litigation and preventing prisoner suits with merit from receiving adequate attention.

The difficult task is "winnow[ing] out the wheat from the unusual amount of chaff necessarily presented in a system which fosters pro se litigation." Watson v. Ault, 525 F.2d at 890. This court has stated three standards which district courts may use to determine whether a claim is frivolous. The first requires a determination of whether the IFP complaint has a "realistic chance of ultimate success." Jones v. Bales, 58 F.R.D. at 464. See also Anderson v. Coughlin, 700 F.2d at 45 (dismissal appropriate if plaintiff's reasonable chance of ultimate success is slight). The second requires that the complaint have "arguable merit ... in terms of the arguable substance of the claim presented, both in law and in fact." Watson, 525 F.2d at 892. The third prohibits dismissal "unless the court is satisfied 'beyond doubt' that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Bienvenu v. Beauregard Parish Police Jury, 705 F.2d 1457, 1459 (5th Cir.1983) (citations omitted). We think that the concept of frivolousness in Sec. 1915(d) is broad enough to support dismissal on any of these grounds.

We emphasize the uniqueness of a Sec. 1915(d) determination. It is not to be confused with determinations made under the Federal Rules. See Anderson, 700 F.2d at 43. The Federal Rules of Civil Procedure, particularly Rule 8, instituted a system which relies on a liberal opportunity for discovery and other pretrial procedures to disclose more precisely the basis of both a claim and a defense and to define more narrowly the disputed facts and issues. Such a system is desirable in the majority of cases, but it contemplates litigants who are limited by considerations of time, money and the possibility of sanctions for frivolous or malicious actions. It also contemplates litigants who are represented by counsel schooled in the use of the system.

IFP litigation under Sec. 1915 is of a "fundamentally different nature." Anderson, 700 F.2d at 43. Section 1915 provides free access to the courts. Care must be taken to ensure that such access is not abused. We must not kill the goose which lays the golden egg. As one commentator noted several years ago, "[the] upsurge in [IFP proceedings] is said to threaten both efficient judicial administration and the achievement of justice in individual cases, creating the possibility that judges will not be able to identify the meritorious cases in the flood of those deemed frivolous." Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv.L.Rev. 610, 611 (1979). The predicted possibility is now common fact.

Proper use of Sec. 1915(d) procedures should enable a district court to determine at the earliest possible stages in pro se litigation whether there is any merit to an IFP proceeding. Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire. An early determination of the merits of an IFP proceeding provides a significant benefit to courts (because it will allow them to use their scarce resources effectively and efficiently), to state officials (because it will free them from the burdens of frivolous and harassing litigation), and to prisoners (because courts will have the time, energy and inclination to give...