Holm v. Haines, 89-C-1092-C.

• Decision Date: 05 April 1990
• Docket Number: No. 89-C-1092-C.,89-C-1092-C.
• Citation: Holm v. Haines, 734 F.Supp. 366 (W.D. Wis. 1990)
• Parties: Fred T. HOLM, III, Plaintiff, v. Terrance HAINES and James Resop, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

734 F. Supp. 366

Fred T. HOLM, III, Plaintiff, v.Terrance HAINES and James Resop, Defendants.

No. 89-C-1092-C.

United States District Court, W.D. Wisconsin.

April 5, 1990.

Fred T. Holm, III, pro se.

Jennifer Sloan Lattis, Asst. Atty. Gen., Madison, Wis., for defendants.

ORDER

CRABB, Chief Judge.

Plaintiff, an inmate at the Waupun Correctional Institution in Waupun, Wisconsin, has moved for reconsideration of the January 25, 1990 order in which I denied him leave to proceed in forma pauperis with respect to certain claims raised in his proposed complaint.He seeks also to proceed in forma pauperis on an amended complaint.

In his original proposed complaint, plaintiff made a number of allegations and named four proposed defendants.His allegations concerned primarily two disciplinary actions taken against him, one while he was an inmate at Kettle Moraine Correctional Institution in 1984 and another while he was at Camp McNaughton in 1985.In the January 25 order I discussed the allegations in detail and then considered whether there was any arguable basis in law or fact for finding that the allegations stated actionable claims against any of the proposed defendants.Neitzke v. Williams,___ U.S. ___, 109 S.Ct. 1827, 104 L.Ed.2d 338(1989).I concluded that the complaint could be read as stating only one claim for which there was arguable support in law or fact: plaintiff's contention that defendants Haines and Resop had not provided him with a statement of reasons and an opportunity to respond within a reasonable time after he was placed in temporary lockup at the McNaughton prison camp on August 6, 1985.(Whether that conclusion was correct is a question to be discussed later in this opinion.)I granted plaintiff leave to proceed in forma pauperis only on the temporary lockup claim and only against defendants Haines and Resop.I denied him leave to proceed in forma pauperis on all of his remaining claims and with respect to the remaining two defendants and dismissed his complaint with prejudice as to those claims.

Several weeks later, I received an unpublished order in another case involving an unrepresented indigent litigant in which there was a suggestion that district courts act in violation of Dixon v. Pitchford,843 F.2d 268(7th Cir.1988), if, at the outset of litigation, they do not grant or deny leave to proceed in forma pauperis on an indigent litigant's entire complaint.This was the first indication I had seen that Dixon was intended to apply to anything other than the granting of leave to proceed in forma pauperis on appeal.

I continue to think it doubtful that Dixon does apply at the outset of litigation.First, the only issue raised in Dixon was the treatment of cases on appeal.The court of appeals had no occasion to consider how its holding might affect the granting of leave to proceed in forma pauperis at the beginning of a law suit.Second, requiring district courts to grant or deny leave on the entire proposed complaint would be a major change.If such a change were intended, it is likely the court of appeals would have made it explicit that it was overruling previous decisions in which it had held that separate consideration of leave to proceed in forma pauperis could be given to each claim.See, e.g., Jones v. Morris,777 F.2d 1277, 1279(7th Cir.1985):

Congress has chosen to strike the balance between the need to curb the abuses necessarily associated with in forma pauperis litigation and the concern for ensuring indigent litigants meaningful access to the federal courts by permitting the district court to dismiss with prejudice those claims which are frivolous or malicious.In this circuit, the district court conducts this inquiry even before the defendants are served.Emphasis added.

See alsoSmith-Bey v. Hospital Administrator,841 F.2d 751(7th Cir.1988), (approving denial of leave to proceed in forma pauperis against some of the defendants and analyzing separately the two claims raised in the complaint);Williams v. Faulkner,837 F.2d 304, 308(7th Cir.1988), aff'd sub nom.Neitzke v. Williams,___ U.S. ___, 109 S.Ct. 1827, 104 L.Ed.2d 338(reversingdistrict court's denial of leave to proceed in forma pauperis and dismissal of entire complaint, holding that leave to proceed should have been granted as to two of the defendants and one of the two claims);Benjamin v. United States,833 F.2d 669(7th Cir.1987)(district court granted petitioner leave to proceed in forma pauperis against one of two defendants).

Whether Dixon was or was not intended to apply to the district court's initial consideration of pro se litigation, it is apparent there remains some confusion about the handling of this litigation.

Years ago, the district courts in this circuit based their decisions to grant or deny leave to proceed in forma pauperis solely on the sufficiency of the financial affidavit accompanying the proposed complaint.If a petitioner was found to be indigent, the district court would grant leave to proceed in forma pauperis and then go on to examine the proposed complaint to determine whether it was frivolous or malicious.If the finding was that the complaint was frivolous, the court would dismiss it immediately, pursuant to 28 U.S.C. § 1915(d).United States ex rel. Morris v. Radio Station WENR,209 F.2d 105(7th Cir.1953).In a 1974 decision, Nichols v. Schubert,499 F.2d 946(7th Cir.1974), the court of appeals held that district courts could not dismiss an indigent's complaint sua sponte until summons had been issued and served.

The Nichols decision created a procedural quagmire that became apparent immediately.In 1975, the court decided Wartman v. Branch 7, Civil Division, County Court, Milwaukee County,510 F.2d 130(7th Cir.1975), stating

We note that some difficulties may have resulted from the failure of Nichols to discuss United States ex rel. Morris v. Radio Station WENR,209 F.2d 105(7th Cir.1953).Radio Station WENR held that in determining whether to allow a complaint to be filed in forma pauperis under 28 U.S.C. § 1915(a), a district court should not consider the merits of the claim, but should grant the motion to proceed in forma pauperis if the affidavit of indigency is sufficient.We went on to hold that the question of whether the complaint presented a meritorious claim could then be examined and the action dismissed pursuant to 28 U.S.C. § 1915(d) if found to be frivolous or malicious.The problem is that under the recent decision in Nichols the dismissal of a complaint under such circumstances is prevented until summons has issued in accordance with Fed.R.Civ.P. 4(a).The result of these two decisions is that a district judge must allow an indigent plaintiff the right to have summons issue at no cost no matter how meritless the cause of action may be.Such a result cannot have been intended by either decision.Footnote omitted.

Id. at 131-132.The court examined the statutory language of 28 U.S.C. § 1915(d) and its history and concluded that it was necessary to overrule the earlier holding in Radio Station WENR,209 F.2d 105:

We see no benefit to an indigent in allowing his action to be filed at the same time it is dismissed.Accordingly, in the future, a district judge should deny leave to proceed in forma pauperis if an action is frivolous or malicious.If the motion is granted and the complaint filed, the matter cannot be dismissed until summons has issued.This practice will avoid any conflict between section 1915andFed.R.Civ.P. 4(a).

Wartman,510 F.2d at 134.Two judges concurred, noting their belief that Fed.R. Civ.P. 4(a) did not require summons to issue for an obviously meritless complaint and that district judges had the power to dismiss such complaints before summons was issued.

The court of appeals did not explain how district courts should handle proposed complaints that included both frivolous and non-frivolous claims.I read Wartman as requiring summons to issue and service to be made on any defendant named in a claim that was not found to be frivolous.From this I concluded that district courts should analyze each claim of a proposed complaint, granting leave to proceed in forma pauperis only on the non-frivolous claims and denying leave on the others.I understood Wartman to say that the only way to avoid the necessity of service of a complaint on a proposed defendant was to deny leave to proceed in forma pauperis with respect to that defendant.In other words, it was necessary to have summons issue and service made on every defendant named in the proposed complaint unless leave to proceed in forma pauperis had been denied explicitly with respect to a particular defendant.

The decisions in Jones v. Morris,777 F.2d 1277, andSmith-Bey,841 F.2d at 757, confirmed my reading of Wartman that in granting leave to proceed in forma pauperis at the beginning of a law suit, separate consideration was to be given to individual claims in the proposed complaint.In these decisions, the court of appeals did not restrict the district courts as much as it had in Wartman, in which it had held that the only way to handle a proposed complaint was to grant or deny leave to proceed in forma pauperis.Instead, the court said, the district courts had the choice of either denying leave to proceed on individual claims or dismissing individual claims of a proposed complaint before granting leave to proceed.As far as I can determine, however, the court did not overrule the requirement of Wartman that summons must issue once leave to proceed in forma pauperis is granted as to the entire complaint or any portion of it.

If the district courts are not bound to order summons to issue upon granting leave to proceed in forma pauperis, there would be merit in adopting the procedure that Dixon may require: that the district courts act on the entire complaint when deciding whether to grant leave to proceed in forma pauperis at the outset of litigation, making...