Wendell Duncan v. Donna Jill Johnson
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-00055-COA
WENDELL DUNCAN A/K/A WENDELL AVERY
DUNCAN
APPELLANT
v.
DONNA JILL JOHNSON AND RENEE COVERT
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEES
12/12/2007
HON. ROBERT WALTER BAILEY
LAUDERDALE COUNTY CIRCUIT COURT
WENDELL DUNCAN (PRO SE)
NO BRIEF FILED
CIVIL - OTHER
COMPLAINT DISMISSED AS FRIVOLOUS
AFFIRMED IN PART AND VACATED AND
REMANDED IN PART: 3/10/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
MYERS, P.J., FOR THE COURT:
¶1.
Wendell Duncan filed suit against Donna Jill Johnson, Circuit Clerk of Lauderdale
County, and Renee Covert, a deputy circuit clerk. Duncan alleged that Johnson violated his
constitutional right of access to the courts by failing to issue summonses in a prior suit.
Duncan also alleged that Covert violated his right of access to the courts by refusing to
subsequently alter filing dates on the docket sheet of the same action. Duncan alleged these
failures resulted in that cause being dismissed, and as a result, he suffered emotional distress.
¶2.
The circuit court dismissed Duncan’s complaint as frivolous.
In light of this
complaint, and seven others that he had filed but not pursued, the circuit court also enjoined
Duncan from filing any additional papers in the Circuit Court of Lauderdale County. Duncan
appeals, arguing that the circuit court erred in dismissing his complaint as frivolous and that
the circuit court’s bar on his filing papers in that court violates his constitutional right of
access to the courts.
DISCUSSION
1.
Whether the circuit court erred in dismissing Duncan’s complaint
as frivolous.
¶3.
Mississippi courts exercise concurrent jurisdiction with our federal counterparts over
section 1983 1 claims, but the elements of and the defenses to the cause of action are defined
by federal law. E. Miss. State Hosp. v. Callens, 892 So. 2d 800, 812 (¶21) (Miss. 2004)
(citations omitted).
¶4.
Our trial courts possess an inherent authority to dismiss frivolous complaints, sua
sponte, even prior to service of process on the defendants.2 See Blanks v. State, 594 So. 2d
1
42 U.S.C. § 1983 (2006).
2
The dissent asserts that the trial court was required to conduct a Spears hearing
prior to dismissing Duncan’s complaint. See Spears v. McCotter, 766 F.2d 179 (5th Cir.
1985). It can cite no Mississippi authority holding a trial court in error for not conducting
such a hearing. Indeed, in authorizing Spears hearings, our supreme court held that a trial
court “may on its own motion” hold such a hearing when the plaintiff alleges poverty; it is
not required. See Blanks v. State, 594 So. 2d 25, 28 (Miss. 1992) (emphasis added).
In the Fifth Circuit, a prisoner-plaintiff is only entitled to a Spears hearing when “it
appear[s] that insufficient factual allegations might be remedied by more specific pleading.”
2
25, 28 (Miss. 1992) (“If . . . the complaint is frivolous, process need not be issued. In this
event, there would be no occasion for the defendants to file an answer to the prisoner's
complaint.”). See also Bilbo v. Thigpen, 647 So. 2d 678, 684 (Miss. 1994). Although a trial
court is required to give a liberal construction to pro se civil rights complaints, see Moore v.
McDonald, 30 F.3d 616, 620 (5th Cir. 1994), we review a trial court’s conclusion that a
complaint is frivolous for abuse of discretion. Huggins v. State, 928 So. 2d 981, 983 (¶4)
(Miss. Ct. App. 2006) (citing Dock v. State, 802 So. 2d 1051, 1056 (¶11) (Miss. 2001)). The
power to dismiss a frivolous complaint is distinct from a trial court’s authority to dismiss for
failure to state a claim under Rule 12(b)(6). See Neitzke v. Williams, 490 U.S. 319, 326
(1989). A trial court has “not only the authority to dismiss a claim based on an indisputably
meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual
allegations and dismiss those claims whose factual contentions are clearly baseless.” Id. at
327.
¶5.
Accordingly, in reviewing the circuit court’s dismissal for an abuse of discretion, we
consider: (1) whether the complaint has a realistic chance of success; (2) whether it presented
an arguably sound basis in fact and law; and (3) whether the complainant could prove any
Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994) (emphasis added); see also Rougeau v.
Shepard, 607 So. 2d 1227, 1231-32 (Miss. 1992) (describing a Spears hearing as “a limited
inquiry regarding the facts of inartfully drawn pleadings”). In the Fifth Circuit, a district
court’s decision not to hold such a hearing is reviewed for an abuse of discretion. Eason,
14 F.3d at 9. Even assuming that a Mississippi circuit court could be held to error in not
conducting a Spears hearing, the court here did not abuse its discretion in finding one
unnecessary; we affirm its dismissal because the facts, although clearly alleged, are
nonetheless not actionable.
3
set of facts that would warrant relief. Dock, 802 So. 2d at 1056 (¶11). We shall address
Duncan’s allegations against each defendant separately.
A.
¶6.
Duncan’s Claims Against the Circuit Clerk
Duncan’s complaint alleged that the circuit clerk denied him access to the courts by
refusing on one instance to issue summonses. Duncan claims that on May 17, 2006, he
mailed a summons for each defendant, along with a cover letter,3 to the circuit clerk’s office.
Duncan alleged that the circuit clerk “maliciously, recklessly, intentional[ly], and negligently
failed to file [his summonses] correctly or file them at all.”
¶7.
We note as a threshold issue that an “access to the courts” claim under section 1983
requires an allegation of intentional conduct; negligent or inadvertent conduct will not
suffice. Richardson v. McDonnell, 841 F.2d 120, 122 (5th Cir. 1988). Likewise, a court
clerk is entitled to qualified immunity for good faith efforts in the execution of her duties,
unless her conduct violates "clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see
also Antoine v. Byers & Anderson Inc., 508 U.S. 429, 432 n.4 (1993); Rheuark v. Shaw, 628
F.2d 297, 305 (5th Cir. 1980). Clearly, the circuit court did not abuse its discretion in finding
3
The cover letter read:
Please find enclosed, two (2) summons for Willie Bookert and Darryl
Johnson, to be served the filed complaint, thats [sic] attached to the summons.
I would like you to file this action, just in case they have not been served,
because I have not received an answer from either one and I have a Motion for
Summary Judgment filed on the 22nd day of March, 2006. I would like you,
to return me a stamped filed copy of the same . . . .
4
Duncan’s complaint frivolous to the extent he alleged harm from inadvertent conduct or a
good faith mistake. Nor can we say that the circuit court abused its discretion in finding
Duncan’s allegations, to the narrow extent they may be actionable, to be improbable.
¶8.
Even if we accept the facts alleged in the complaint as true, it is not clear that Duncan
has stated a cause of action under section 1983. Duncan filed suit on January 30, 2006, but
he admits that he did not attempt to issue summonses prior to May 17, 2006, when less than
two weeks remained of the 120 days allowed for service of process by Mississippi Rule of
Civil Procedure 4(h). Even if Duncan mailed the summonses on May 17, 2006, as he
claimed, and the circuit clerk had promptly issued process and delivered it to the sheriff,
there is no guarantee that service would have been effected prior to the expiration of the 120day period. Likewise, had Duncan diligently prosecuted his claim, he could have sought a
writ of mandamus to order the circuit clerk to issue the summonses. Furthermore, the
Mississippi Rules of Civil Procedure provided Duncan an opportunity to seek enlargement
of the time allowed for service, prior to the expiration of the 120-day period under Rule
6(b)(1), but he did not. Duncan was also permitted to extend the 120-day period by motion
following its expiration on a showing of excusable neglect under Rule 6(b)(2), or excuse his
failure to timely serve process with a showing of good cause under Rule 4(h).
¶9.
Instead, Duncan did not follow up on the cause until September 25, 2006, long after
the end of the 120-day period for service. Under these circumstances, we find the reasoning
in Kincaid v. Vail, 969 F.2d 594 (7th Cir. 1992), to be persuasive. With similar operative
facts before it, the Seventh Circuit held:
The appellants had adequate state remedies available to them. The
5
Indiana Constitution assures civil litigants the right of access to the courts . .
. . Indiana law permits enforcement of those rights by providing that writs of
mandate and prohibition may be issued to any and all inferior courts
compelling the performance of any duty enjoined by law upon the inferior
courts. . . .
More fundamentally, the appellants have not alleged that any prejudice
resulted from the March return of their check. This action . . . caused at most
a delay in the plaintiffs’ access to the court. While a delay or interruption in
pending or contemplated litigation may indicate a deprivation of constitutional
dimensions, we have required a showing of prejudice. Here, if the plaintiffs
suffered any prejudice . . . [it] is attributable to [a subsequent judicial
decision].
Id. at 602-03 (citations and internal quotations omitted). Considering the lengthy 120-day
period allowed for service and the multitude of remedies available to Duncan, we do not see
this single, isolated failure of the circuit clerk to be an actionable interference with Duncan’s
right of access to the courts. Any prejudice Duncan suffered was a result of his failure to
prosecute the suit.
B.
¶10.
Duncan’s Claims Against the Deputy Clerk
Duncan’s only allegation against the deputy clerk was that she refused to “correct”
the docket to reflect the filing of the summonses he claimed to have mailed to the circuit
clerk on May 17, 2006. As the circuit court explained, the docket only reflects filings; it
cannot be “corrected” to include documents that were never filed. Duncan’s argument is
without legal merit and does not have a realistic chance of success. Furthermore, Duncan
can claim no prejudice to his right of access to the courts by any actions of the deputy clerk
because his request to correct the docket was not made until September 25, 2006, almost four
months after the 120 days allowed to serve process had run. The deputy clerk could not have
6
done anything in response to Duncan’s letter that would have prevented his complaint from
being dismissed.
2.
¶11.
Whether the circuit court erred in sanctioning Duncan.
The circuit court ordered that Duncan “may not file and is barred from filing another
Complaint or any other pleading whatsoever in this Court. The Circuit Clerk is ordered and
directed not to accept, receive or file any additional pleadings, documents, letters or other
correspondence from the Plaintiff, Wendell Duncan.”
¶12.
In Vinson v. Benson, 805 So. 2d 571, 576 (¶18) (Miss. Ct. App. 2001), this Court
discussed the inherent authority of our trial courts to regulate and sanction abusive litigants:
The Mississippi Constitution does not create an unlimited right of access to the
courts. Turrentine v. Brookhaven, Mississippi School Dist., 794 F. Supp. 620,
626 (S.D. Miss. 1992). "No one, rich or poor, is entitled to abuse the judicial
process." Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989) (citing
Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir. 1975)). "One acting pro se
has no license to harass others, clog the judicial machinery with meritless
litigation, and abuse already overloaded court dockets." Ferguson v. Bank
Houston, N.A., et al., 808 F.2d 358, 359 (5th Cir. 1986). We adopt the view
of these federal courts that abuse of the judicial process is inappropriate . . . .
Nonetheless, “[C]ourts must carefully observe the fine line between legitimate restraints and
an impermissible restriction on a prisoner’s constitutional right of access to the courts.”
Procup v. Strickland, 792 F.2d 1069, 1072 (11th Cir. 1986). While we recognize the circuit
court’s considerable discretion in crafting restrictions on abusive litigants, this authority does
not extend to an absolute, permanent bar on future filings.
¶13.
Therefore, although we affirm the circuit court’s dismissal of Duncan’s complaint as
frivolous, the circuit court’s injunction is vacated, and the cause is remanded for the circuit
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court to consider an appropriate alternative sanction.
¶14. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY
IS AFFIRMED IN PART AND VACATED AND REMANDED IN PART FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.
LEE, P.J., GRIFFIS, AND CARLTON, JJ., CONCUR. BARNES, J., CONCURS
IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION
JOINED BY KING, C.J., IRVING AND ISHEE JJ. KING, C.J., CONCURS IN PART
AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. IRVING,
J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. ROBERTS AND
MAXWELL, JJ., NOT PARTICIPATING.
BARNES, J., CONCURRING IN PART, DISSENTING IN PART:
¶15.
I must respectfully dissent from the majority’s decision to affirm the dismissal of
Duncan’s lawsuit as “patently frivolous” without any notice or opportunity for Duncan to be
heard in the circuit court. While Duncan’s claims may indeed be found to be frivolous upon
further review, he is entitled to a Spears hearing 4 prior to any dismissal of his complaint. I
do, however, concur with the majority opinion that the circuit court’s injunction on future
filings be vacated and remanded.
¶16.
The trial judge, upon his own motion, dismissed Duncan’s complaint against the
circuit clerk and her deputy clerk on the same day it was filed and, further, barred Duncan
from filing any further pleadings in the court. The trial judge cited no authority for such
4
In Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), the court held that a prisoner
proceeding in forma pauperis may be afforded an evidentiary hearing by a magistrate to
determine if there is a legal basis for the claim. The court in Spears encouraged the trial
courts to examine pro se pleadings, “using interrogatories as well as evidentiary hearings to
do so, prior to deciding whether the prisoner can state a claim to satisfy Rule 12(b)(6).”
Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
8
action. Although the majority cites Neitzke v. Williams, 490 U.S. 319, 327 (1989), for the
proposition that the trial court has “not only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual power to pierce the veil of the
complaint’s factual allegations and dismiss those claims whose factual contentions are clearly
baseless[,]” a closer review of the case reveals that such authority is only accorded under 28
U.S.C. § 1915(d). Id. (“To this end, the statute accords judges not only the authority to
dismiss a claim based on an indisputably meritless legal theory . . .”) (emphasis added). The
Supreme Court stated in Neitzke:
Section 1915(d) is designed largely to discourage the filing of, and waste of
judicial and private resources upon, 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.5 Mississippi, however, has no comparable statute.
¶17.
Regardless, our supreme court, fully cognizant of the concerns raised in Nietzke, has
addressed the issue of dismissal of frivolous claims brought by a pro se in forma pauperis
litigant in Blanks v. State, 594 So. 2d 25 (Miss. 1992) and in Bilbo v. Thigpen, 647 So. 2d
678 (Miss. 1994). In those cases, the supreme court stated that our rules of civil procedure
adequately cover the process outlined in section 1915(d) under Mississippi Rules of Civil
5
The statute was revised in 1996, and section 1915(d) was re-designated as section
1915(e). The statute states in pertinent part that a court may dismiss an in forma pauperis
case “at any time if the court determines that . . . the action or appeal (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
9
Procedure 3 and 11. In Blanks, the court explained:
Rule 3(c) MRCP provides that the court may on its [own] motion examine an
affiant alleging pauperism as to the facts and circumstances of his financial
condition. If the action is to be dismissed on the basis that the affidavit is
untrue that finding should be based on evidence preserved in the record.
Feazell v. Staltzfus, 98 Miss. 886, 54 So. 444 (1910). Where the court
conducts a hearing to determine the issue of poverty, it is entirely reasonable
and in the interest of judicial economy that the pleading also be examined and
the affiant questioned to determine whether the action is frivolous and,
therefore, subject to dismissal pursuant to Rule 11 MRCP. Thus the so-called
Spears hearing, usually employed in pro se prisoner in forma pauperis
complaints, is consonant with our law.
Blanks, 594 So. 2d at 28. Therefore, the purpose of a Spears hearing is to determine whether
or not a “prisoner should be permitted to file and proceed on his complaint in forma
pauperis” and whether “the inmate’s complaint suffers from frivolity.” Id. It is only if the
trial judge finds that the “complainant is not a pauper” or “the complaint is frivolous, process
need not be issued[,]” and there would be no need for a “defendant[] to file an answer to the
prisoner’s complaint.” Id.
¶18.
“Once a Spears evidentiary hearing is conducted, dismissal of the case because of
frivolity becomes an issue.” Bilbo, 647 So. 2d at 688. The supreme court in Bilbo
recognized that while a Spears hearing “is not explicitly authorized by our state statutes, it
is a federal procedure consonant with our law, given approval in Blanks and Rougeau[.]” 6
Id. at 693. “Therefore, we choose to give meaning and effect to Spears hearings, announcing
our employment of the United States Supreme Court’s definition of ‘frivolous’ and the abuse
6
Rougeau v. Shepard, 607 So. 2d 1227 (Miss. 1992).
10
of discretion appellate standard of review for application to pro se prisoners’ in forma
pauperis complaints.” Id.
¶19.
The majority submits that, based on the Fifth Circuit Court of Appeals’ ruling in
Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994), a Spears hearing is only necessary in situations
where “ it appear[s] that insufficient factual allegations might be remedied by more specific
pleading.” They contend that Duncan’s claims were not actionable and, therefore, did not
merit such an opportunity. However, Eason is distinguishable from the present case in that
it is a federal court case; consequently, section 1915 would be applicable. As already noted,
section 1915 is not applicable to cases brought in Mississippi courts.
¶20.
In both Blanks and Bilbo, the prisoner was afforded a Spears hearing prior to the
dismissal of his claim. I find no Mississippi authority for dismissing a prisoner’s claim
without such a hearing, and the majority has cited none. Accordingly, I find that the trial
judge’s failure to afford Duncan a Spears hearing, which our supreme court has found to be
an appropriate procedure in determining a pro se prisoner’s claims, to be reversible error.
In my view, the case should be remanded for a Spears hearing in order to afford Duncan
notice and an opportunity to be heard prior to any dismissal of his claim.
KING, C.J., IRVING AND ISHEE, JJ., JOIN THIS OPINION.
11
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