James A. Watson et al., Plaintiffs-appellants, v. Dr. Allen L. Ault et al., Defendants-appellees.william Purdue, Plaintiff-appellant, v. Dr. Allen L. Ault, Director, et al., Defendants-appellees.william A. Durham, Plaintiff-appellant, v. Oree Thompson et al., Defendants-appellees, 525 F.2d 886 (5th Cir. 1976)

These appeals, consolidated for opinion purposes, are from orders of the district court denying the right to proceed in forma pauperis and dismissing as frivolous, pursuant to 28 U.S.C.A. § 1915(d), three separate pro se prisoner complaints asserted under the Civil Rights Act. 42 U.S.C.A. § 1983. Given notice pleading concepts and the extant authorities on administering in forma pauperis appeals under 28 U.S.C.A. § 1915, we hold that the dismissals were premature. Accordingly, we vacate and remand for further proceedings.

The appellants are all state prisoners in the custody of the Georgia State Board of Corrections, confined at either the Reidsville State Prison or the Georgia Diagnostic and Classification Center at Jackson. The factual claims underlying their individual causes of action and the individual and collective actions of the district court with respect to the three petitions will first be summarized.

No. 75--1683

In No. 75--1683, petitioners Watson and Patterson filed a complaint on February 20, 1975, in the Middle District of Georgia alleging a cause of action under 42 U.S.C.A. § 1983. They sought damages and equitable relief against Dr. Allen Ault, Director of the Georgia State Board of Corrections, and against Dr. James E. Ricketts, Warden of the Georgia Diagnostic and Classification Center. The basis for the complaint was that their constitutional rights had been violated by the denial of procedural due process in a transfer to solitary confinement, by subjection to allegedly inhumane conditions in the prison, and by unwilling participation in a prisoner behavior modification program. To the complaint was attached an affidavit requesting leave to proceed in forma pauperis.

No. 75--1684

In No. 75--1684, appellant Purdue filed a complaint on February 7, 1975, based on the Civil Rights Act, 42 U.S.C.A. § 1983, similarly petitioning the court to proceed in forma pauperis. The defendants in his suit were also Doctors Ault and Ricketts. The complaint alleged comparable violations of constitutional rights stemming from allegedly unbearable living conditions at the prison, and from a transfer to apparently punitive confinement without being accorded procedural due process. Appellant Purdue also attached an affidavit requesting leave to proceed in forma pauperis.

No. 75--1685

In No. 75--1685, appellant Durham originally filed his complaint in the Southern District of Georgia against various persons alleged to have violated his constitutional rights in the investigation and prosecution of the crime for which he had been imprisoned. These violations included a lack of probable cause for his arrest, an appearance in a lineup without counsel, a failure to arraign him for seventeen days after arrest, coercion into signing an involuntary confession, and an assertion that his guilty plea was involuntary. Although the nature of the asserted wrongs were such as normally support a writ of habeas corpus, he sought damages rather than release. The court therefore did not require exhaustion of state remedies and allowed the complaint to be filed in the Southern District. Because all the parties except Durham were residents of a county in the Middle District of Georgia, the court transferred the case to that district under 28 U.S.C.A. § 1404. Appellant Durham had also included an affidavit in forma pauperis, which was not ruled upon by the district court in the Southern District. All pleadings in the case were transferred to the Middle District of Georgia on November 22, 1974.

The Actions of the District Court

The order of the district court dismissing each complaint as frivolous under 28 U.S.C.A. § 1915(d) was essentially the same in each case, and is reproduced in the margin.¹  The apparent basis for the district court's dismissal was the lack of additional facts to support whatever claim had been presented in the original complaints, as evidenced by the failure or refusal of appellants to respond to a court questionnaire intended to develop facts. Having found the complaints to be frivolous, the district court ordered that the three complaints be filed for record purposes only and otherwise dismissed them on the day that each complaint was so filed.

All of the petitioners filed notice of appeal, requesting leave to appeal in forma pauperis from the district court's dismissal of their respective complaints. The district court filed a single order granting leave to appeal in forma pauperis to all of the petitioners 'out of an abundance of caution' because no decision by this court had previously approved the procedure that it had followed with respect to these complaints. In that order the district court amplified its reasons for using a questionnaire to ascertain whether there was any substance to the three complaints. Because none of the petitioners had returned the questionnaire, it was noted that 'the court could only proceed on its initial impression and belief that each of said complaints (was) frivolous and more than likely also malicious.'

The district court noted the difficulties faced by district courts in sifting through the large volume of pro se prisoner petitions and stated that it was considered within its discretion under 28 U.S.C.A. § 1915 to have adopted such a procedure. Quoting Jones v. Bales, N.D. Ga., 1972, 58 F.R.D. 453, aff'd, 5 Cir., 1973, 480 F.2d 805, authority was found to dismiss such complaints simultaneously with filing where the complaint and the questionnaire did not demonstrate an adequate factual basis for the asserted cause of action.² II

Prisoner litigation

In recent years, the federal courts have assumed an increasing burden of numerous law suits by federal and state prisoners challenging the conditions of their confinement.³  See Hines v. Askew, 5 Cir., 1975, 514 F.2d 673, and cases cited therein. For state prisoners, the normal basis for such claims is an allegation that some constitutional right has been violated. The path to the federal court-house is therefore through the cause of action granted by the Civil Rights Act, 42 U.S.C.A. § 1983.⁴ 

While on some occasions the wrongs asserted by the prisoner are of constitutional dimension, on many occasions the complaints, if not frivolous, do not rise to the level of a denial of federal constitutional rights. See Aldisert, Judicial Expansion of Federal Jurisdiction: A Federal Judge's Thoughts on Section 1983, Comity and the Federal Caseload, 1973, Law & Social Order, 557, 573, et seq. The difficult task facing the courts is to winnow out the wheat from the unusual amount of chaff necessarily presented in a system which fosters pro se litigation. This case results from the efforts of one federal district court to respond to that problem.

Section 1915

Aside from the willingness of courts to review conditions of confinement, a second statutory provision has in tandem helped cause the increase in prisoner litigation. This is the ability under 28 U.S.C.A. § 1915 to commence an action in forma pauperis without prepayment of fees and costs for security, where so authorized by a district court.⁵  The difficulty in this case is the confusion arising from the district court's treatment of two separate subsections of that provision. Subsection (a) of § 1915 authorizes the filing of a suit in forma pauperis, by a person who makes an affidavit that he is 'unable to pay . . . costs or give security therefor.' Subsection (d) of § 1915 states that the court 'may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.' Under Subsection (a), the commencement or filing of the suit depends solely on whether the affiant is economically eligible. The only determination to be made by the court under § 1915(a), therefore, is whether the statements in the affidavit satisfy the requirements of poverty. See Campbell v. Beto, 5 Cir., 1972, 460 F.2d 765, 768; Lockhart v. D'Urso, 3 Cir., 1969, 408 F.2d 354.

Section 1915(d) allows a measure of control by the district court over such suits by allowing the court to dismiss a case where it is satisfied that an action is frivolous or malicious. The keystone of such dismissal is the court's exercise of discretion under Section 1915(d). The focal point of that discretion is the court's duty to satisfy itself that the action is frivolous or malicious. In making that determination, unless it appears as a matter of law, it necessarily follows that the court must ascertain whether there is a factual basis for the petitioner's suit. See Jones v. Bales, supra.

In assessing the legal sufficiency of a complaint, the customary standard has been stated by the Supreme Court in Conley v. Gibson, 1957, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80, to require that:

a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

355 U.S. 45--46, 78 S. Ct. at 102, 2 L. Ed. 2d at 84.

In Haines v. Kerner, 1972, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652, the court placed a gloss on ordinary notice pleading concepts by holding that a pro se prisoner complaint is governed by 'less stringent standards than formal pleadings drafted by lawyers.' 404 U.S. at 520, 92 S. Ct. at 596, 30 L. Ed. 2d at 654. This circuit has explicitly applied this broader standard to prisoner suits. Campbell v. Beto, supra; Demps v. Wainwright, 5 Cir., 1975, 522 F.2d 192; Gamble v. Estelle, 5 Cir., 1975, 516 F.2d 937.

III

Given the nature of the problem and the relevant legal standards, we now consider the appropriate procedural responses that can be made by the district court. We are aided in our disposition of this appeal by the efforts of a committee chaired by Judge Aldisert and appointed by the Federal Judicial Center to study the handling of prisoner civil rights cases throughout the country and to propose procedures for the more effective handling of such cases. The Committee's final report to the Federal Judicial Center, 'Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts (Oct. 6, 1975),' (hereinafter Recommended Procedures) has been utilized.

Filing and Eligibility

A district court's dismissal of a prisoner's pro se petition prior to filing has been considered and rejected by this court. In Campbell v. Beto, 5 Cir., supra, this court, speaking through Chief Judge Brown, held that:

the better course in judicial administration in this dynamic field (is) for the District Court to allow the case to be docketed without prepayment of costs and then, if appropriate, dismiss instead of refusing to allow the case docketed even though at that stage it is judicially determined that the complaint does not state a claim on which relief could be granted.

460 F.2d at 768.

Thus, as here, where the in forma pauperis affidavit is sufficient on its face to demonstrate economic eligibility, the court should first docket the case and then proceed to the question presented under Section 1915(d) of whether the asserted claim is frivolous or malicious.

At this point, the district court may employ flexibility and creativity in exercising its discretion under § 1915(d). In some cases, even under the broadest and most liberal standard of pleading, the plaintiff may state no cause of action. If this be the case, then the district court would be correct in dismissing, after filing, such a claim as being facially frivolous under 28 U.S.C.A. § 1915(d). In others, the complaint will impose upon the district court a duty to ascertain whether there is any factual basis for the asserted claim. In those cases where a defect in the complaint is curable, the court should allow amendment. Recommended Procedures, at 25.

Section 1915(d) determination

In determining whether a particular prisoner complaint is frivolous or malicious under Section 1915(d), the threshold issue for the trial court is an assessment of the substance of the claim presented, i.e., is there a factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded. The test of frivolity in the context of Section 1915(d) in the trial court, has not been defined. In Anders v. California, 1967, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493, 498, the Supreme Court in a criminal case defined a frivolous appeal as being one without arguable merit. In our view this same test or standard should be applied in the trial court but in terms of the arguable substance of the claim presented, both in law and in fact.

We do not perceive that the district court in the cases now before this court followed these procedures. The determination of frivolity was in each instance made on the complaint plus the failure of plaintiffs to respond to a court questionnaire. Taking the complaints alone, it is clear that they alleged causes of action if considered in light of the Haines v. Kerner gloss fashioned for pro se prisoner petitions. The imposition of the questionnaire resulted in the proceeding being truncated short of answer and factual determination.

This is not to say that it was improper to use the questionnaire approach in pro se cases of the type here presented. The employment of a form questionnaire is a useful means by which the court can develop the factual basis for the prisoner's complaint.⁶  The more difficult problem, however, is that of framing the questions to insure that responses are given and are also of some use. Thus, the form should be simple enough for the average prisoner to understand the questions. The form should be concise and pertinent to a claim asserted under the Civil Rights Act. The form of questionnaire recommended by the Federal Judicial Center committee, supra, seems appropriate for use in making the legal and factual determination necessary to adjudicating pro se prisoner matters either under Section 1915(d) or at a later stage on motion or on the merits.⁷  We append hereto a copy of the recommended questionnaire.

In sum, assuming forma pauperis status, the prisoner complaints must be filed. At that point, complainants may be required to respond to the questionnaire as a necessary pleading auxiliary, in the nature of a motion for more definite statement, Rule 12(e), F.R.Civ.P., in order that the court may assess the factual and legal bases of the claim asserted. Because the answers to the questionnaire will effectively amplify the original allegations in the prisoner's complaint, cf. Rule 15(a), F.R.Civ.P., they are an integral part of that complaint and not a separate, independent pleading. The questionnaire is, therefore, not an additional pleading in violation of the command of Rule 7(a), F.R.Civ.P.

This brings us to the claim that service of process was required immediately upon the complaints being filed. Having approved the use of the questionnaire as a pleading auxiliary, we think it appropriate to withhold service of process pending receipt of the questionnaire. At that point the pro se complaint is complete, and unless dismissed, service of process will be required pursuant to Rule 4(a), F.R.Civ.P. Cf. Wartman v. Branch 7 Civil Division, County Court, Milwaukee County, 7 Cir., 1975, 510 F.2d 130, on its surface contra, but where the use of a questionnaire and its relationship to Rule 4(a) were not considered by the court.

Having found that the dismissal by the district court of the prisoner pro se petitions was procedurally deficient, we vacate and remand for further proceedings not inconsistent with this opinion.

Vacated and remanded.

MODEL FORM FOR PRISONER CIVIL RIGHTS COMPLAINTS

RECOMMENDED BY THE FEDERAL JUDICIAL CENTER COMMITTEE

Instructions for Filing Complaint by Prisoners

under the Civil Rights Act, 42 U.S.C. §

1983

This packet includes four copies of a complaint form and two copies of a forma pauperis petition. To start an action you must file an original and one copy of your complaint for each defendant you name and one copy for the court. For example, if you name two defendants you must file the original and three copies of the complaint. You should also keep an additional copy of the complaint for your own records. All copies of the complaint must be identical to the original.

The clerk will not file your complaint unless it conforms to these instructions and to these forms.

Your complaint must be legibly handwritten or typewritten. The plaintiff or plaintiffs must sign and swear to the complaint. If you need additional space to answer a question, you may use the reverse side of the form or an additional blank page.

Your complaint can be brought in this court only if one or more of the named defendants is located within this district. Further, it is necessary for you to file a separate complaint for each claim that you have unless they are all related to the same incident or issue.

In order for this complaint to be filed, it must be accompanied by the filing fee of $15. In addition, the United States Marshal will require you to pay the cost of serving the complaint on each of the defendants.

If you are unable to pay the filing fee and service costs for this action, you may petition the court to proceed in forma pauperis. Two blank petitions for this purpose are included in this packet. One copy should be filed with your complaint; the other copy is for your records. After filling in the petition, you must have it notarized by a notary public or other officer authorized to administer an oath.

You will note that you are required to give facts. THIS COMPLAINT SHOULD NOT CONTAIN LEGAL ARGUMENTS OR CITATIONS.