Harris v. Menendez

• Decision Date: 27 May 1987
• Docket Number: No. 86-3777,86-3777
• Citation: 817 F.2d 737
• Parties: Marcus B. HARRIS, Plaintiff-Appellant, v. Manuel MENENDEZ, Mr. Hermida, State Attorney, C.N. Pisano, Sheriff, Defendants-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 737

817 F.2d 737

7 Fed.R.Serv.3d 1255

Marcus B. HARRIS, Plaintiff-Appellant, v. Manuel MENENDEZ, Mr. Hermida, State Attorney, C.N. Pisano, Sheriff, Defendants-Appellees.

No. 86-3777

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

May 27, 1987.

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

Before FAY, ANDERSON and EDMONDSON, Circuit Judges.

EDMONDSON, Circuit Judge:

Marcus Harris appeals the district court's dismissal of his pro se civil rights complaint. We affirm that dismissal.

Harris was charged in a state court proceeding with violating two conditions of his probation. During the hearing on those two charges, which are not otherwise relevant here, the state notified the court of two new charges of uttering forged instruments, although no affidavit of the violation had been filed. The judge continued the revocation hearing so that the state could determine what it wished to do with the new charges.

Judge Manuel Menendez presided over the second revocation hearing. Although Harris' pleadings and appellate brief are not clear on this point, Mr. Hermida was apparently the state attorney who charged Harris. According to testimony at the hearing, Deputy Sheriff Carmen Pisano arrested Harris on the forgery charges after an alleged accomplice implicated and identified Harris. At the end of the hearing, Judge Menendez found no violations concerning the two original charges, but revoked Harris' probation based on the forged check charges.

Harris appealed that decision, arguing that the forged check charges could not be used to revoke probation because they were not charged in the affidavit of probation violation. The Florida District Court of Appeals agreed ¹ and reversed the probation revocation.

Harris then filed a 42 U.S.C. sec. 1983 complaint in the United States District Court for the Middle District of Florida, alleging that Judge Menendez, Mr. Hermida and Deputy Sheriff Pisano violated his constitutional rights by perjuring themselves and conspiring to have his probation improperly revoked. Harris also alleged that Pisano arrested him without probable cause.

Harris filed the complaint pro se, along with an application to proceed in forma pauperis. Before service of Harris' complaint, the district court dismissed the complaint as frivolous under 28 U.S.C. sec. 1915(d). Harris, currently incarcerated in the Hillsborough County Jail for reasons unknown to this court, appeals that decision.

Federal courts are facing a barrage of civil rights petitions filed by prisoners. The number of such suits has risen from 218 in 1966 to 18,034 in 1984 and to 20,842 last year. ² One of the reasons for this surge in prisoner litigation is the authorization under 28 U.S.C.A. sec. 1915(a) to sue in forma pauperis (IFP) without prepayment of fees. An important adjunct of that license is the discretion afforded the district courts under section 1915(d) to sua sponte dismiss IFP proceedings if the suit is "frivolous or malicious."

The reasons for granting broader discretion in IFP suits than in ordinary civil actions are compelling. Persons proceeding IFP do not face the same financial obstacles as other litigants. IFP petitioners not only are exempt from customary court costs, but because of their poverty are practically immune from the financial deterrents to filing frivolous lawsuits, such as assignment of costs of the suit and tort liability for abuse of process. This immunity increases the temptation to file complaints which are factually unprovable or legally questionable. Green v. City of Montezuma, 650 F.2d 648, 651 (5th Cir Unit B 1981) ³; see also, Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir.1984). No one should be allowed to misuse the courts with impunity. Certainly, nothing in section 1915 requires taxpayers to subsidize misuse of the courts.

Prisoners possess several advantages over even the ordinary pro se litigant. Not only do prisoners have time to draft multiple and prolonged pleadings, but the state must provide free materials such as pen and paper and free services such as legal information and mailing privileges. Procup v. Strickland, 792 F.2d 1069, 1071 (11th Cir.1986) (en banc). Prisoners are also more tempted to file meritless complaints. In the words of Justice Rehnquist, "Though [an inmate] may be denied legal relief, he will nonetheless have obtained 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 (1972) (Rehnquist, J., dissenting). Importantly, "meritless actions offer inmates an unrestricted method of harassing prison and law enforcement officials." Phillips v. Mashburn, 746 F.2d 782 (11th Cir.1984).

These frivolous claims impose a heavy cost on the justice system. The federal courts have limited resources. Every resource expended on a frivolous petition is one less resource available for the just adjudication of a valid petition. The sheer volume of frivolous civil rights complaints threatens to obscure the violations that actually need redress by the federal courts. As the number of these lawsuits rises, so does the probability that a federal judge will be unable to marshall the resources needed to rectify bona fide constitutional violations, or that a judge, worn-out and weary of worthless claims, will prematurely dismiss a valid petition.

Accordingly, the principle that every truly abused prisoner deserves judicial attention requires that district courts dispose as quickly and expeditiously as possible of petitions by prisoners who are merely discontented, malicious, or bored. The Federal Rules of Civil Procedure, designed as they were for litigants facing the economic barriers inherent in the American legal system, do not offer district courts much help in this task.

For example, a district court judge considering whether to dismiss a petition under Fed.R.Civ.P. 12(b)(6) for failure to state a claim must accept the allegations in the petition as true. Cooper v. Pate, 378 U.S. 546, 546, 84 S.Ct. 1733, 1734, 12 L.Ed.2d 1030 (1964). Thus, a "reasonably intelligent prisoner with a willingness to misrepresent facts can often avoid both 12(b) dismissal and summary judgment, although he actually has no chance of eventual success in his suit." 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). ⁴

A district court judge, however, is not confined to the Federal Rules of Civil Procedure in IFP cases. When it enacted those rules, Congress left intact the broad mandate of 28 U.S.C. sec. 1915(d), which allows a judge to dismiss "frivolous or malicious" IFP claims. Observing that a frivolous appeal under sec. 1915(d) is one "without arguable merit," we have explained that in an IFP civil rights action, a trial court should determine whether there is "a factual and legal basis, of constitutional dimension, for the asserted wrong." Watson v. Ault, 525 F.2d 886, 892 (5th Cir.1976).

We note that some circuits have overlooked the reasons for the liberal grant of discretion in IFP cases and have held that the standard for determining when a suit is "frivolous" is the same as that for dismissal of a case under Fed.R.Civ.P. 12(b)(6). See, e.g., Boyce v. Alizaduh, 595 F.2d 948, 951-52 (4th Cir.1979). This circuit, however, has not merged the two standards, specifically holding that a court's authority to dismiss a complaint as frivolous under section 1915(d) is broader than dismissal under Fed.R.Civ.P. 12. Montana v. Commissioner's Court, 659 F.2d 19, 21 (5th Cir.1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982).

It is true that some precedent of this circuit might be interpreted as holding that the standard for dismissal under sec. 1915(d) is the same as that for dismissal under Rule 12(b)(6). In those cases, however, the issue was whether the IFP petition was legally sufficient or failed to state a claim. See, e.g., Lee v. Evans, 789 F.2d 885 (11th Cir.1986) (implied); Neary v. Dugger, 766 F.2d 456 (11th Cir.1985); Harmon v. Berry, 728 F.2d 1407 (11th Cir.1984) (implied); Green v. City of Montezuma, 650 F.2d 648 (5th Cir. Unit B 1981); Bruce v. Wade, 537 F.2d 850, 852 n. 2 (5th Cir.1976). When the question is the legal sufficiency of an IFP complaint, the inquiry seems the same under either sec. 1915(d) or Rule 12(b)(6). Green v. City of Montezuma, 650 F.2d at 651; Montana v. Commissioners Court, 659 F.2d at 21.

The fact that the two standards may coincide when the sufficiency of a complaint is specifically at issue, however, in no way signifies that a court may dismiss a claim as frivolous under sec. 1915(d) only when it is legally insufficient under Rule 12(b)(6). Watson v. Ault, 525 F.2d 886 (5th Cir.1976); cf. Boag v. MacDougall, 454 U.S. 364, 365 n. *, 102 S.Ct. 700, 701 n. *, 70 L.Ed.2d 551 (1982) (refusing to decide whether legally sufficient complaint was frivolous under sec. 1915(d)). In fact, the precedent of this circuit compels the opposite conclusion.

In 1973, this circuit's predecessor, the former Fifth Circuit, affirmed the opinion in Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972), for the reasons and authorities cited by the district court. Jones v. Bales, 480 F.2d 805 (5th Cir.1973). By doing so, the former Fifth Circuit effectively adopted and republished as an appellate opinion the district court's opinion in Jones. In that opinion, the district court allowed the plaintiff prisoner to proceed IFP. After months of discovery and other proceedings, the district court noted that the plaintiff's allegations "simply strain credulity" and dismissed the action under sec. 1915(d) as "frivolous and perhaps malicious." Id. at 461. In affirming that opinion, the Fifth Circuit approved the principle that an IFP complaint that states a claim under Rule 12(b)(6) may nevertheless be dismissed under sec. 1915(d) as soon as the court becomes convinced...