Nasim v. Warden, Maryland House of Correction

• Citation: 42 F.3d 1472
• Decision Date: 08 February 1995
• Docket Number: No. 93-7263,93-7263
• Parties: Ghulam Mohammed NASIM, Plaintiff-Appellant, and Ghulam Ahmed Nasim; Abdul Karim Nasim, Plaintiffs, v. WARDEN, MARYLAND HOUSE OF CORRECTION; Asbestos Contractor, Maryland House of Correction; Unknown Prison Officials, Maryland House of Correction, All Individually and in their Official Capacity Under Color of State Law, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1472

42 F.3d 1472

Ghulam Mohammed NASIM, Plaintiff-Appellant, and Ghulam Ahmed Nasim; Abdul Karim Nasim, Plaintiffs, v. WARDEN, MARYLAND HOUSE OF CORRECTION; Asbestos Contractor,

Maryland House of Correction; Unknown Prison Officials,

Maryland House of Correction, All Individually and in their

Official Capacity Under Color of State Law, Defendants-Appellees.

No. 93-7263.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 2, 1994.

Decided Jan. 10, 1995.

Rehearing In Banc Granted, Opinion Vacated Feb. 8, 1995.

ARGUED: Valerie A. Potenza, Student Counsel, Appellate Litigation Clinical Program, Georgetown University Law Center, Washington, DC, for appellant. Regina Hollins Lewis, Asst. Atty. Gen., Baltimore, MD, for appellees. ON BRIEF: Steven H. Goldblatt, John J. Hoeffner, Supervising Atty., Paul S. Ellis, Student Counsel, Appellate Litigation Clinical Program, Georgetown University Law Center, Washington, DC, for appellant. J. Joseph Curran, Jr., Atty. Gen., Baltimore, MD, for appellees.

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

Reversed by published opinion. Judge MOTZ wrote the majority opinion, in which Judge MURNAGHAN joined. Judge NIEMEYER wrote a dissenting opinion.

OPINION

MOTZ, Circuit Judge:

Ghulam Nasim appeals from the district court's dismissal of his complaint against the Warden of the Maryland House of Correction and certain other prison officials as untimely. Because it is not apparent from the face of Nasim's complaint that it was not filed within the prescribed statute of limitations period, we reverse.

I.

Proceeding pro se, Nasim filed a complaint and application to proceed in forma pauperis in the District of Maryland on September 17, 1993, alleging violations of 42 U.S.C. Secs. 1983 and 1985. The complaint alleged that Nasim was confined at the Maryland House of Correction in Jessup, Maryland, from April, 1983 until November 15, 1989, during which time he was denied "needed treatment for stroke and spinal disk disease" and "suffered several attacks of relapse from stroke, lung disease, eye disease and skin lesions" because of asbestos exposure. The complaint further alleged that "[i]n first half of 1988 and second half of 1989" Nasim observed asbestos "falling from ceiling into [his] cage," that there was "no notice, information nor a wa[r]ning" as to the asbestos, and that, despite Nasim's complaints to "doctors, nurses and warden," prison officials failed to take any measures to "protect plaintiff and other inmates." Finally, the complaint alleged that Nasim "suffered permanent medical and psychological injuries by forcing to inhale cancer causing asbestos chemicals, maliciously and secretly dumped upon plaintiff during 1988-1989, without any warning or protection to the helpless prisoner in cage...." (all errors in original).

On October 5, 1993, without directing service upon the defendants, the district court granted Nasim leave to proceed in forma pauperis but then dismissed his complaint with prejudice as untimely. ¹ Nasim filed a motion for reconsideration, in which he asserted that it was not until 1991, after reading relevant news articles and securing certain information under the Freedom of Information Act, that he realized that the asbestos was the probable cause of his injuries. The district court denied Nasim's motion for reconsideration, again without directing service and before receipt of any pleading from the defendants, and this appeal followed.

II.

The district court dismissed Nasim's complaint pursuant to 28 U.S.C. Sec. 1915(d), which "allows the courts to dismiss an in forma pauperis complaint 'if satisfied that the action is frivolous or malicious.' " Denton v. Hernandez, --- U.S. ----, ----, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992) (quoting 28 U.S.C. Sec. 1915(d)). "[A] complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A district court's determination that a claim is "frivolous" is reviewed for abuse of discretion. Denton, --- U.S. at ----, 112 S.Ct. at 1734; see also White v. Gregory, 1 F.3d 267, 269 (4th Cir.1993); Brown v. Briscoe, 998 F.2d 201, 203 (4th Cir.1993) (per curiam). As we recently explained in Adams v. Rice, "it would defeat the purpose of Sec. 1915(d)," i.e., the prevention of "abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims," to review Sec. 1915 dismissals "without substantial deference to the district courts." Adams v. Rice, 40 F.3d 72, 74 (4th Cir.1994).

Of course, this does not mean that a district court's discretion to grant a Sec. 1915(d) dismissal is unbridled, or that such discretion is not subject to appellate review. A complaint is properly dismissed pursuant to Sec. 1915(d) as factually frivolous only if its factual allegations are "fantastic," "delusional," or otherwise "clearly baseless," and as legally frivolous only if its claims are based on an "indisputably meritless legal theory." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. Accordingly, the task of an appellate court in reviewing a Sec. 1915(d) dismissal on one, or both, of these grounds is to determine whether these standards were met.

This is illustrated by our recent analysis in Adams. There, the plaintiff, a prisoner who had been assigned to "single-cell housing," alleged that prison officials "retaliated" against him by (1) refusing to transfer him to protective custody, (2) denying him minimum custody status, (3) failing to schedule a parole eligibility date and hearing, and (4) barring his access to the grievance process. Adams, 40 F.3d at 75. The district court found that Adams' factual claims were "clearly baseless" and that his legal theory "lacked an arguable basis in law." Id. at 74. After noting the peculiar nature of such "retaliation" claims by prisoners, i.e., "[e]very act of discipline by prison officials is by definition 'retaliatory' in the sense that it responds directly to prisoner misconduct" and "must therefore be regarded with skepticism, lest federal courts embroil themselves in every disciplinary act that occurs in state penal institutions," id. at 74, we addressed separately each basis for the Sec. 1915(d) dismissal. Because the "nonsensical" complaint in Adams "fail[ed] to allege how or why defendants retaliated against plaintiff," or why his single-cell housing "was inferior to or even different from protective custody," we concluded that the district court had not abused its discretion in finding that the complaint "was clearly baseless in fact." Id. at 74-75. Moreover, because the "retaliation" claim failed to implicate any constitutional right, we concluded that the district court had not abused its discretion in finding that the complaint " 'lack[ed] even an arguable basis in law.' " Id. at 75 (quoting Neitzke, 490 U.S. at 328, 109 S.Ct. at 1833).

The analysis employed in Adams is precisely what is required when an appellate court must determine whether a district judge abused his discretion in dismissing a complaint pursuant to Sec. 1915(d) because its factual allegations were "clearly baseless" or because it was based on an "indisputably meritless legal theory." Neither of these grounds, however, provides the basis for dismissal here; nor could they. Comparison between this case and Adams is instructive. First, Nasim's claim, unlike that in Adams, is not that prison officials "retaliated" against him, ² but that they exposed him to a toxic substance--asbestos--that endangered his health. Moreover, the complaint here, again unlike that in Adams, contains specific allegations as to "how and why" defendants assertedly violated the plaintiff's rights, i.e., by permitting asbestos to "fall[ ] from ceiling into the Plaintiff's cage" in 1988 and 1989 without "notice, information ... wa[r]ning or protection provided to the Plaintiff." Although the factual allegations here are unlikely, ³ they are not "nonsensical." Compare Adams, 40 F.3d at 75. Furthermore, a claim that prison officials have purposely or with deliberate indifference exposed a prisoner to a toxic substance, unlike the claim of retaliation in Adams, does have a constitutional basis, i.e., the Eighth Amendment. See Helling v. McKinney, --- U.S. ----, ----, 113 S.Ct. 2475, 2481-82, 125 L.Ed.2d 22 (1993) (prisoner states "a cause of action under the Eighth Amendment" when alleging prison officials, "with deliberate indifference, exposed him" to toxic substance).

Thus, Nasim's complaint, unlike that in Adams, does not contain factual allegations that are on their face "nonsensical," "clearly baseless," or wholly conclusory. Nor does the complaint here, again unlike that in Adams, lack "even an arguable basis in law." Rather, Nasim's legal theory--that prison officials deliberately exposed him to toxic substances--has been specifically recognized by the Supreme Court as stating a cause of action under the Eighth Amendment. See Helling, --- U.S. at ----, 113 S.Ct. at 2481. Moreover, as noted above, the district court did not hold to the contrary. Unlike the district court in Adams, the court here did not dismiss the complaint because the factual allegations were "clearly baseless" or because the legal theory was without "an arguable basis in law." Rather, the district court dismissed Nasim's complaint solely because it concluded that the complaint "ha[d] been filed outside the statute of limitations." In sum, the complaint was dismissed, not because of some defect in the complaint itself, but because the court found there was a meritorious affirmative defense to the allegations in the complaint.

At one time it was unclear whether, pursuant to Sec. 1915(d), a district court could dismiss a complaint on the basis of a waivable affirmative defense, ⁴ before receiving any responsive...