Pugh v. Parish of St. Tammany, 88-3916

Citation875 F.2d 436
Decision Date31 May 1989
Docket NumberNo. 88-3916,88-3916
PartiesWallace S. PUGH, Plaintiff-Appellant v. PARISH OF ST. TAMMANY, et al., Defendants-Appellees. Summary Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Wallace S. Pugh, Angie, La., pro se.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, KING, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

I.

The plaintiff, Wallace Pugh, was sentenced to twelve years' imprisonment for his fourth conviction for driving under the influence of alcohol. He filed this action, pursuant to 42 U.S.C. Sec. 1983, in forma pauperis (IFP) against St. Tammany Parish and its assistant district attorneys, asserting that the bill of information on which he was convicted was defective in that one of the prior DWI convictions alleged in the bill was not in fact a conviction. In the district court, Pugh sought monetary damages and a declaration that the fourth DWI conviction is void.

The magistrate recommended (1) dismissing with prejudice Pugh's civil rights complaint as frivolous under 28 U.S.C. Sec. 1915(d); (2) dismissing without prejudice, for failure to exhaust state remedies, that element of Pugh's complaint that appeared to sound in habeas corpus; and (3) taxing Pugh ten dollars in court costs for filing this frivolous suit, which is his seventh action against the district attorneys' offices of either St. Tammany or St. Charles Parish and his fourteenth suit regarding his DWI convictions filed in the same district court. That court rejected Pugh's objections to the magistrate's report and adopted the report.

II.

Correctly, the magistrate and district court concluded that the defendants are entitled to absolute prosecutorial immunity, even assuming the truth of plaintiff's factual allegations. The magistrate noted that " 'in initiating a prosecution and in presenting the state's case, the prosecutor is immune from a civil suit for damages under Sec. 1983' " (quoting Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976)). Based upon this immunity, the magistrate recommended dismissal pursuant to section 1915(d), noting that "Pugh has utterly failed to state a claim for relief under Sec. 1983."

Thus, the district court, in adopting the magistrate's report, appears to have dismissed plaintiff's action sua sponte under Fed.R.Civ.P. 12(b)(6); that is, the court apparently concluded that a complaint that fails to state a claim under rule 12(b)(6) is ipso facto frivolous under section 1915(d). At the time of the district court's entry of judgment, the law in this circuit supported that proposition. For example, in Cay v. Estelle, 789 F.2d 318, 326 (5th Cir.1986), we held that "[a]n IFP proceeding may be dismissed if (1) the claim's realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law and fact; or (3) it is clear that the plaintiff can prove no set of facts in support of his claim." Accord, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir.1986).

This law has been changed by a recent and intervening Supreme Court opinion. In Neitzke v. Williams, --- U.S. ----, ---- - ----, 109 S.Ct. 1827, 1830-31, 104 L.Ed.2d 338 (1989), the Court held "that a complaint filed in forma pauperis is not automatically frivolous within the meaning of Sec. 1915(d) because it fails to state a claim." Thus, the third prong of the three-part Cay test is no longer valid.

III.

Although the magistrate's report in this case mentions only the failure to state a claim as ground for dismissal under section 1915(d), it is evident that the complaint here is a qualifying candidate for dismissal under either of the remaining two prongs. We hold that both of these grounds plainly survive under Neitzke.

As for the second prong, for example, Neitzke provides that "... 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." Id. at ----, 109 S.Ct. at 1829. As an example of such a "meritless legal theory," id. at ----, 109 S.Ct. at 1830, the Court mentions "claims against which it is clear that the defendants are immune from suit." Id. Thus, the instant cause easily could have been dismissed on the basis of the second Cay test.

Similarly, dismissal would have been amply justified here on the ground of no realistic chance of ultimate success, the first-listed basis in Cay. The Court speaks broadly of the appropriate use of section 1915(d) in dismissing "baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11." Id. Permitting dismissal of lawsuits that have "no realistic chance of ultimate success" fosters and is wholly consistent with that goal.

Thus, the Court in Neitzke has eschewed the broad-brush effect of rule 12(b)(6) dismissals under section 1915(d) because caught in such a net are both cases based "on an outlandish legal theory [and those based] on a close but ultimately unavailing one." Id. --- U.S. at ----, 109...

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