Horsey v. Asher

• Decision Date: 17 June 1983
• Docket Number: 83-3356-CV-S-4.,No. 83-3306-CV-S-4,83-3306-CV-S-4
• Citation: 593 F. Supp. 441
• Parties: Charles HORSEY, Plaintiff, v. David ASHER, Defendant, Charles HORSEY, Plaintiff, v. CLERK, CIRCUIT COURT FOR the COUNTY OF GREENE, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

593 F. Supp. 441

Charles HORSEY, Plaintiff, v. David ASHER, Defendant, Charles HORSEY, Plaintiff, v. CLERK, CIRCUIT COURT FOR the COUNTY OF GREENE, et al., Defendants.

Nos. 83-3306-CV-S-4, 83-3356-CV-S-4.

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

June 17, 1983.

Charles Horsey, pro se.

O.J. Taylor, Taylor, Stafford & Woody, Springfield, Mo., for defendants.

ORDER

RUSSELL G. CLARK, Chief Judge.

On March 10, 1983, plaintiff was convicted by a jury in the Circuit Court of Greene County, Missouri on six counts of receiving stolen property. State v. Horsey, No. CR382-79-FX-3 (Greene County Circuit Court). Plaintiff filed a notice of appeal from those convictions on April 11, 1983. Another criminal case, alleging eight counts of stealing and six counts of burglary in the second degree, is also presently pending against the plaintiff in the Circuit Court of Greene County. State v. Horsey, No. CR382-78-FX-3 (Greene County Circuit Court). On May 13, 1983 plaintiff filed a pro se 42 U.S.C. § 1983 action in this Court alleging that the defendants, police officers of Springfield, Missouri, deprived him of his constitutional rights. On May 17, 1983 this Court entered an order denying plaintiff leave to proceed in forma pauperis on eight of his ten claims asserted in Case No. 83-3306-CV-S-4 because the Court was satisfied that those counts were frivolous. The Court, however, granted plaintiff leave to proceed in forma pauperis on two of his claims against Detective Asher of the Springfield Police Department.

On June 6, 1983, plaintiff filed another civil rights action against three judges of the Circuit Court of Greene County, Missouri; the prosecuting attorney of Greene County, Missouri; and the clerk of the Circuit Court of Greene County, Missouri. Plaintiff contends that those defendants conspired to deny plaintiff meaningful access to the courts by refusing to provide him with court documents and by providing this Court with false information. Plaintiff also alleges that his privately retained attorney, formerly an Associate Circuit Judge for the Circuit Court of Greene County, Missouri, refused to represent plaintiff in this civil rights action and was being "terrorized" by the other defendants. Thus, plaintiff's motion for leave to proceed in forma pauperis in Case No. 83-3356-CV-S-4 is presently before this Court. Before discussing that motion, the Court will consolidate Case No. 83-3306-CV-S-4 with Case No. 83-3356-CV-S-4 because a common question of law will result in the dismissal of both complaints. Rule 42(a).

Since dismissal of the plaintiff's complaints is predicated not on Federal Rule of Civil Procedure 12 but 28 U.S.C. § 1915(d), some general discussion of that statute is appropriate. Section 1915 provides the statutory basis for in forma pauperis proceedings in federal courts. Subsection (d) provides, in part, that "the court may ... dismiss the case filed in forma pauperis if satisfied that the action is frivolous or malicious." Although the words "frivolous or malicious" are not defined in the statute, this Court reads subsection (d) as a very broad grant of discretion to the district courts from the United States Congress regarding management of in forma pauperis actions. Subsection (d) is a grant of power to dismiss in situations where dismissal under Federal Rule of Civil Procedure 12 might otherwise be improper. Cruz v. Beto, 405 U.S. 319, 328, 92 S.Ct. 1079, 1084, 31 L.Ed.2d 263 (1972). Boag v. Boies, 455 F.2d 467, 468 (9th Cir. 1972); Fletcher v. Young, 222 F.2d 222, 224 (4th Cir.1955). The purpose underlying 28 U.S.C. § 1915(d) was eloquently stated by Judge Aldrich in O'Connell v. Mason, 132 F. 245 (1st Cir.1904):

It is quite clear that Congress, while intending to extend to poor and meritorious suitors the privilege of having their wrongs redressed without the ordinary burdens of litigation, at the same time intended to safeguard members of the public against an abuse of the privilege by evil-minded persons who might avail themselves of the shield of immunity from costs for the purpose of harassing those with whom they were not in accord, by subjecting them to vexatious and frivolous legal proceedings.

132 F. at 247. And several courts have stated that Congress contemplated that a court's discretionary power to excise frivolous or malicious actions is to be exercised on a case-by-case basis, dependent upon the particular facts. Willard v. United States, 299 F.Supp. 1175, 1177 (N.D.Miss.1969) affirmed 422 F.2d 810 (5th Cir.1970).

There exists persuasive and convincing reasons for the United States Congress to vest the district courts with broader discretion and dismissal powers in forma pauperis suits than in other types of actions. This is especially true in damage actions brought by convicted prisoners. As noted by Judge Aldridge, persons proceeding in forma pauperis are immune from imposition of costs if they are unsuccessful. Because of their poverty, they are practically immune from later tort actions for malicious prosecution or abuse of process and from fines imposed by the courts. Unlike normal litigants, indigents have nothing to lose and everything to gain by filing claims. The temptation to file complaints alleging facts which cannot be proved is obviously stronger. And for convicted prisoners with much idle time and free paper, typewriters, law libraries, and mailing privileges, the temptation is especially pronounced. As one Justice of the Supreme Court has noted, "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).

One need only review the case law to realize that the problem presented by prisoner actions is not imaginary. In Mann v. Leeke, 73 F.R.D. 264 (D.S.C.1974), a prisoner brought a civil rights action alleging cruel and unusual punishment in permitting female personnel to work in the environment of male prisoners because the female personnel stimulated the prisoners' sexual drives to their frustration. Gordon v. Secretary of State of New Jersey, 460 F.Supp. 1026 (D.N.J.1978), involved a prisoner that filed an action charging that he was denied the office of the Presidency of the United States because of his illegal incarceration in jail. In Searight v. State of New Jersey, 412 F.Supp. 413 (D.C.N.J. 1976), a prisoner filed a civil rights suit alleging that the defendants unlawfully injected him in the left eye with a radium electric beam and that, as a result, someone now talks to him in the inside of his brain. Dismissing the case on other grounds, that court nevertheless considered whether plaintiff's claim fell under the sole jurisdiction of the Federal Communications Commission as a presumably unlicensed radio communication and offered plaintiff the practical suggestion that he could block the broadcast to the antenna in his brain by simply grounding his antenna with the use of a paperclip chain extending from the back of the plaintiff's trousers to the floor. Of course, the case of United States ex rel. Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D.Pa.1971), must be discussed. There, plaintiff brought a civil rights action against Satan and his servants who allegedly placed deliberate obstacles in plaintiff's path and caused his downfall. The Court dismissed that case for the plaintiff's failure to perfect service of process. In Ruth v. United States Congress, 71 F.R.D. 676 (D.N.J.1976), a federal inmate filed an action against the United States Congress alleging that the federal district courts are overworked and underpaid by the consequence of the defendant's failure to increase judicial compensation in the past seven years despite an enormous increase in the cost of living, caseload and backlog. With an unprecedented showing of self-denial, that court dismissed the claim as frivolous but not before positing the probing question as to why federal district courts are only allowed a staff of three persons whereas members of Congress are entitled to a staff of sixteen.

A case which represents the true nature of the beast which has been created is Kent Norman v. Ronald Reagan, 95 F.R.D. 476 (D.Ore.1982). There, a prisoner filed a civil rights action alleging that the defendant Ronald Reagan had caused him "civil death without legislation." Plaintiff demanded a jury trial in federal court for parking fines assessed by a local municipality. Plaintiff also sought an injunction against "White Line Fevers from Mars" which was, allegedly, a fruit company which shipped marijuana and cocaine in "fruit boxes" for Mother's Day. Plaintiff also requested social security payments. Relying on 28 U.S.C. § 1915(d), the district court properly dismissed the action as frivolous. The Ninth Circuit Court of Appeals disagreed and reversed.

Neither has this Court been safe from the deluge. One prisoner has filed over five hundred separate cases in this Court. Cases collected in Green v. Jenkins, 80 F.R.D. 686 (W.D.Mo.1978). Federal prisoners, who were all Native American Indians, filed an action alleging that prison officials deprived them of their right to freedom of religion because the plaintiffs were not allowed to smoke "sweet grass" in their peace pipes. Mathes v. Carlson, 534 F.Supp. 226 (W.D.Mo.1982). And recently, a prisoner filed a civil rights action in a sister division of this Court because the barbecued ribs served by the prison at dinner were not as meaty as they should have been.

At first blush, most of the above-cited cases appear somewhat comical. Upon reflection, however, the comedy subsides when one realizes the inordinate amount of judicial time and taxpayer expense that are wasted by these lawsuits. The seriousness of the situation is driven home by the fact that in the last decade the number of civil rights suits brought by prisoners under 42 U.S.C. § 1983 has increased by 450%....