Harvey v. CLAY CTY. SHERIFF'S DEPT.

• Decision Date: 18 July 1979
• Docket Number: No. 78-CV-0951-W-3.,78-CV-0951-W-3.
• Citation: Harvey v. CLAY CTY. SHERIFF'S DEPT., 473 F. Supp. 741 (W.D. Mo. 1979)
• Parties: Theoplus Eugene HARVEY, Plaintiff, v. CLAY COUNTY SHERIFF'S DEPARTMENT, Katie Houston and Harry Kent, Defendants.
• Court: U.S. District Court — Western District of Missouri

473 F. Supp. 741

Theoplus Eugene HARVEY, Plaintiff, v. CLAY COUNTY SHERIFF'S DEPARTMENT, Katie Houston and Harry Kent, Defendants.

No. 78-CV-0951-W-3.

United States District Court, W. D. Missouri, W. D.

July 18, 1979.

Theoplus Eugene Harvey, pro se.

Leary G. Skinner and Steven R. Fuller, Clay County Counselors, Liberty, Mo., for defendants.

MEMORANDUM AND ORDER

RUSSELL G. CLARK, District Judge.

Plaintiff, formerly confined at the Clay County Jail, Liberty, Missouri, has filed a pro se civil rights action under 42 U.S.C. § 1983 alleging that Jail officials refused to move him to another cell after he was involved in a fight with his cellmate. He also alleges that he was denied proper medical care for a hand injury sustained in the fight. He seeks damages for these alleged injuries.

In past orders, the Court granted provisional leave to proceed in forma pauperis, issued service, and directed defendants to show cause why unconditional leave to proceed in forma pauperis should not be granted. The Court also ordered defendants to expand the record in this case by submitting appropriate documentary information. The question for determination at this time is whether this action is frivolous within the meaning of 28 U.S.C. § 1915(d). If so, it is subject to dismissal.

Recognizing the special problems caused by pro se in forma pauperis litigation, this Court has discussed the concept of frivolity in a number of previous cases. See Boston v. Stanton, 450 F.Supp. 1049 (W.D. Mo.1978); Serna v. O'Donnell, 70 F.R.D. 618 (W.D.Mo.1976). Those cases define a frivolous action as one in which the plaintiff's realistic chances of success are slight. Boston v. Stanton, supra, at 1054. See also Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972). The Boston standard of frivolity has been subjected to criticism, however. In Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979), the Fourth Circuit argued that the Boston standard of frivolity could not be reconciled with the holdings of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Citing this apparent difficulty, the Boyce court promulgated a different standard:

To satisfy the test of frivolousness under § 1915(d), it is . . . essential for the district court to find "beyond doubt" and under any "arguable" construction, "both in law and in fact" of the substance of the plaintiff's claim that he would not be entitled to relief.

Id. at 952.

This definition of frivolity rests on Haines, Gamble, supra, which hold that a complaint may not be dismissed for failure to state a claim on which relief can be granted unless "it appears `beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.'" Haines v. Kerner, supra, 404 U.S. at 520-21, 92 S.Ct. at 596 quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Haines also establishes that in making the determination of whether a complaint states a claim on which relief can be granted, a court must hold pro se pleadings to "less stringent standards than formal pleadings drafted by lawyers." Id. Gamble holds that these rules must be applied when a court dismisses a claim sua sponte for failure to state a claim on which relief can be granted. Estelle v. Gamble, supra, 429 U.S. at 106, 97 S.Ct. 285, 292 (1977).

Boyce then adopts the holding of Watson v. Ault, 525 F.2d 886 (5th Cir. 1976), that actions in the district court should be governed by the standard of frivolity established in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1968); an action is not frivolous under this standard unless it lacks arguable merit. Boyce equates the term "without arguable merit" with the standard evolved in Conley, Haines and Gamble; thus, an action is frivolous only if it appears beyond doubt that a plaintiff can prove no set of facts to support his claim for relief. And, under Boyce, an action is not frivolous unless and until the Court determines that a plaintiff cannot adduce such facts under any arguable construction of the complaint.

Boyce assumes that standards of frivolity must be determined by reference to standards of pleading under the Federal Rules of Civil Procedure. The equation fails for a number of reasons.

Analysis of frivolity must begin from an obvious but often overlooked point: it is part of a statute creating affirmative conditions that must be met by a litigant before he can proceed in federal court without prepayment of the filing fee. The reasons for establishment of such conditions have been stated in a variety of cases: the need to conserve scarce judicial resources, Stone v. Powell, 428 U.S. 465, 491 n.31, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) the need to protect defendants from abuse and harassment; Wycoff v. Brewer, 572 F.2d 1260 (8th Cir. 1978); Green v. Wyrick, 462 F.Supp. 357 (W.D.Mo.1978); the need to take account of the fundamentally different nature of much in forma pauperis litigation, Cruz v. Beto, 405 U.S. 319, 328 n.9, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (Rehnquist, J., dissenting); and the need to ensure that an actual case or controversy exists. Ellis v. State of Maine, 448 F.2d 1325, 1327 (1st Cir. 1971), makes the last point cogently:

There should be a burden on petitioner to come into court with his case, not simply to try to make one out. This does not mean . . . with his full case, but he must show merit, not just personal opinion.

Obviously, these considerations, and the standards of due process and equal protection that are involved with them, see United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976), go far beyond the technical considerations that led to the pleading rules embodied in Rules 8 and 12, Fed.R.Civ.P., and the decisions in Conley, Haines and Gamble.

Considerations similar to those underlying § 1915 have led to imposition of pleading standards more stringent than might otherwise be required under the Civil Rules. In the United States v. MacCollom, supra, the Supreme Court held that an indigent litigant seeking a free transcript for use in a pending action under 28 U.S.C. § 2255 was required to "show . . . there . . . was a basis, grounded on some articulable facts, for believing that a transcript would assist him in his § 2255 proceeding." Id. at 329-30, 96 S.Ct. at 2093 (Blackmun, J., concurring). This "particularized need" rule is clearly a pleading standard, and its roots lie not in the considerations of pleading that led to Rule 8, but in the considerations of economy and protection that also underlie § 1915. See Comment, Restricting the Indigent's Right to a Transcript, 1976 Wash.U.L.Q. 318, 325-26 & n.39 (1977). A similar standard applies under 28 U.S.C. § 2250, which permits applicants in other habeas corpus actions to receive portions of the trial record without cost only upon a showing of need and relevance. United States ex rel. Williams v. State of Delaware, 427 F.Supp. 72 (D.Del. 1976); Irby v. Swenson, 361 F.Supp. 167 (W.D.Mo.1973).

Thus, to vindicate the principles underlying § 1915, courts may properly establish pleading standards for in forma pauperis actions that are different from, or more stringent than, those established by the Civil Rules. Conley, Haines, and Gamble, do not prohibit such standards, either expressly or by implication, because, by their own terms, they only establish a standard for use in judging motions to dismiss under Fed.R.Civ.P. 12(b)(6). That Gamble involved sua sponte dismissal for failure to state a claim does not require a different conclusion. Courts have long had such power under Rule 12. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1356 n.43 (2d ed. 1969).

Moreover, by equating § 1915 with Rules 8 and 12, Boyce encourages the erroneous notion that frivolity must be determined only from the four corners of the complaint. The philosophical bases for this notion fail for the reasons stated above. Further, there are many examples in which an action satisfying the Boyce pleading standard is frivolous. For example, a facially non-frivolous complaint might become frivolous when viewed in light of the plaintiff's past conduct in the court. See, e. g., In re Green, 598 F.2d 1126 (8th Cir. 1979); Carter v. Telectron, Inc., 452 F.Supp. 944 (S.D.Tex. 1977). A complaint that appears to be non-frivolous when standing alone may prove to be frivolous because another litigant, possibly relying on the services of the same "jailhouse lawyer," has presented an identical claim. Cruz v. Beto, supra, 405 U.S. at 329, 92 S.Ct. 1079. A complaint that is non-frivolous on its face may be repetitive, duplicitous, or an attempt to avoid an adverse decision in another district, thereby rendering it frivolous. See, e. g., Van Meter v. Morgan, 518 F.2d 366 (8th Cir. 1975); Chatmon v. Churchill Trucking Co., 467 F.Supp. 79 (W.D.Mo.1979).

Finally, Boyce encourages another erroneous assumption: that the pleading standards of Rules 8 and 12 apply to all kinds of civil actions or claims. In habeas corpus actions, for example, a litigant must come forward with facts which, if proven, would entitle him to relief. Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971). This standard goes considerably beyond the "notice pleading" principles of Rules 8 and 12. In this regard, Boyce also fails to take adequate account of the specialized pleading requirements imposed by Rule 9 or certain statutes. For example, under the Tort Claims Act, the plaintiff must affirmatively plead exhaustion of administrative remedies. West v. United States, 592 F.2d 487 (8th Cir. 1979). A similar rule may apply in actions under the Freedom of Information Act. An adequate standard of frivolity cannot be developed without accounting for these specialized requirements.

In practical terms, the obvious advantages that may follow from prompt dismissal of a complaint...