Spencer v. Rhodes, 86-1258-CRT.

Citation656 F. Supp. 458
Decision Date19 March 1987
Docket NumberNo. 86-1258-CRT.,86-1258-CRT.
CourtU.S. District Court — Eastern District of North Carolina
PartiesJames E.M. SPENCER, Plaintiff, v. Sheriff Royce L. RHODES, et al., Defendants.

James E.M. Spencer, pro se.

Lacy H. Thornburg, Atty. Gen., State of N.C. Raleigh, N.C., for defendants.

ORDER

LARKINS, Senior District Judge:

This Plaintiff filed this action under 42 U.S.C. § 1983 while incarcerated at the Central Prison in Raleigh, North Carolina. He has requested, and has been granted, leave to proceed in forma pauperis. His original complaint was a morass of "legal" conclusions with virtually no factual support. This court, by Order filed January 9, 1987, instructed this Plaintiff that he must assert more than conclusions and must, consistent with Rule 8 of the Federal Rules of Civil Procedure, make a "short and plain" statement of facts that would support what he believed to be his legal claim. The Plaintiff has not complied; he has simply added length to his complaint. The added length, however, is length without substance. Throughout his "supplemental complaint," Mr. Spencer repeats constantly that his rights have been violated and that the defendants have acted illegally, but he fails to explain to this court how this is so.

This court, in its above mentioned January 9, 1987 filing, "ORDERED the Plaintiff to AMEND his complaint to convey a concise statement of the constitutional impingements he has allegedly been made to suffer." This court warned that if he did not, his action would be dismissed. Because the Plaintiff has disregarded this court's order to amend his complaint with a concise statement, the court is justified in dismissing his complaint. In addition, dismissal here is warranted for another reason.

The procedure to be utilized in suits brought in forma pauperis is governed by 28 U.S.C. § 1915. According to subsection (d) of that section, the court "may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." 28 U.S.C. § 1915(d).

The increasing popularity of in forma pauperis suits by prison inmates has fostered an increasing number of dismissals of idle hands litigation by the judicial employment of § 1915(d). The most frequent use of this section is for the dismissal of suits that are labeled "frivolous." See Boyce v. Alizaduh, 595 F.2d 948 (4th Cir.1979); Pace v. Evans, 709 F.2d 1428 (11th Cir. 1983); McFadden v. Lucas, 713 F.2d 143 (5th Cir.1983), cert. denied, 464 U.S. 998, 104 S.Ct. 499, 78 L.Ed.2d 691 (1983); Wiggins v. New Mexico State Supreme Court Clerk, 664 F.2d 812 (10th Cir.1981), cert. denied, 459 U.S. 840, 103 S.Ct. 90, 74 L.Ed.2d 83 (1982).

According to these cases, it is generally accepted that "frivolity" is determined by whether or not, "under any `arguable' construction of either law or fact" the Plaintiff would possibly be entitled to relief. Boyce at 952. If not, the suit is properly dismissed as "frivolous." Application of this statute in recent years has amounted to a sua sponte 12(b)(6) dismissal, usually granted prior to the defendant's knowledge that the suit has even been brought. This articulated standard dictates a historical minimum of what can be dismissed as "frivolous" by district courts without appellate disagreement.

The judiciary has not devoted a commensurate amount of time and attention to the interpretation of what § 1915(d) means by the term "malicious." Although this court did locate some cases at the district court level that dismissed suits as being "malicious," similar appellate decisions that hinge on that term eluded our probe. In most of those opinions in which the word "malicious" is even used in a § 1915(d) dismissal, it is tied to the term "frivolous:" i.e. the suit is dismissed as "frivolous and malicious." See Duhart v. Carlson, 469 F.2d 471, 473 (10th Cir.1972), cert. denied, 410 U.S. 958, 93 S.Ct. 1431, 35 L.Ed.2d 692 (1973). The cases in which the term "malicious" has been severed from the term "frivolous" and used as a separate ground for dismissal are few in number.

In Daves v. Scranton, a pro se inmate, convicted of rape and sodomy, sued his victim, an Assistant District Attorney, four police officers, and a newspaper, claiming that the criminal charges against him had been fabricated. He sought two hundred million to ten billion dollars damages. In Judge Higginbotham's opinion and order, his honor stated that

"after reviewing the complaint in its entirety, I find that, considering the absence of any recital of credible probative facts supporting the allegations which the plaintiff has made and the character of the facts and the allegations recited in the complaint, the suit is brought maliciously and for the purpose of harassing the defendants." (emphasis added).

66 F.R.D. 5, 8 (E.D.Pa.1975).

In Ballentine v. Crawford, Judge Moody held that "a complaint plainly abusive of the judicial process is properly typed `malicious' within the context of Section 1915(d) which authorizes dismissal of the same." 563 F.Supp. 627, 629 (N.D.Ind.1983). Judge Moody added that a "complaint that merely repeats pending or previously litigated claims may be considered abusive and a court may look to its own records to determine whether a pleading repeats prior claims." Id. citing Crisafi v. Holland, 655 F.2d 1305, 1309 (D.C.Cir.1981). Although Judge Moody defined the term, the case was not disposed of on that independent ground, but was dismissed as "both frivolous and an abuse of judicial process (i.e. malicious)" pursuant to § 1915(d). Id.

In Carter v. Ingalls, Judge Bowden wades through an incredible pro se petition in which the plaintiff begins by alleging that he has been receiving improper medical treatment. 576 F.Supp. 834 (S.D.Ga. 1983). Although such a claim can be recognized as a legitimate one, the Plaintiff in Carter added an amazing twist. He explained his "improper medical treatment" by alleging that he had "`blue ink and glass in the General sensory area' of his brain, as well as amnesia and failing eye sight." Id. at 835. The complaint there continued that one Defendant refused to administer the proper medication for these ailments: which, according to the plaintiff, should have been "Cocane of Porcane."1 The Plaintiff Carter not only alleged that the hospital employees had put the "blue ink and glass" into his brain, but that they also "pushed his head into a sack with a rattlesnake and that the rattlesnake bit him on the face and thereby cracked his skull." Id. Judge Bowden held that a dismissal of a pro se complaint was "entirely proper at any time the Court is satisfied that an action is frivolous or malicious." Id. at 837, citing Smith v. Wells, 512 F.Supp. 503, 507 (W.D.Okl.1980). Judge Bowden apparently believed, and this court thinks justifiably so, that the action was BOTH "frivolous" and "malicious." He concluded his opinion with the belief that his "Court's adventures in the pro se prisoner world would continue." Id.

The foregoing indicates that precedent leaves us with an articulated standard of what is a "frivolous" action, but a much more vague interpretation of what constitutes a "malicious" one. However, the recitation of the above cases does highlight the stark realization of just how necessary § 1915(d) has become in assisting with the disposition of prisoner petitions. Judge Bowden's closing comments in Carter, 576 F.Supp. at 837, are becoming more of an understatement every day. The number of prisoner petitions in the federal courts seems to escalate hourly. This court is well aware that the claims must be reviewed, but knows, like most of these plaintiffs and petitioners know, that few of the complaints and petitions are legitimate. Federal district courts need to retain the broad power and discretion to dispose of, not only ludicrous litigation, but also those suits that are technically cognizable, but brought because an inmate has nothing else to do with his time. This retained broad and discretionary power to dismiss, must of course only be exercised when the trial judge, drawing from his years of experience in reading complaints and living lawsuits from start to finish, is of the informed and experienced opinion that a technically cognizable lawsuit is in reality baseless.

In Jones v. Bales, it was held that the federal court's power to dismiss prisoner civil rights cases was "especially broad." 58 F.R.D. 453, 463-464 (N.D.Ga.1972), aff'd. 480 F.2d 805 (5th Cir.1973). The court there stated that

there are compelling reasons for allowing courts broader dismissal powers in forma pauperis suits — especially damage suits brought by convicted prisoners — than in other cases. Persons proceeding in forma pauperis are immune from imposition of costs if they are unsuccessful; and because of their poverty, they are practically immune from later tort actions for `malicious prosecution' or abuse of process. Thus indigents, unlike other litigants, approach the courts in a context where they have nothing to lose and everything to gain. The temptation to file complaints that contain facts which cannot be proved is obviously stronger in such a situation. For convicted prisoners with much idle time and free paper, ink, law books and mailing privileges the temptation is especially strong. As Justice Renquist 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 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (dissenting).

Id, at 463. The above quotation expresses well the understanding that many pro se litigants indeed have everything to gain and nothing to lose. The motivation behind many law suits is questionable at best. The possibility of a change of scenery alone provides inmates with sufficient motive in their own minds to file an action. This willingness to file suits is, as noted above, bolstered by the fact that prisoners...

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