Collins v. Reeves

               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 96-10945
                          (Summary Calendar)



JAMES E. COLLINS,

                                              Plaintiff-Appellant,


                                versus


JAMES D. REEVES,

                                              Defendant-Appellee.



          Appeal from the United States District Court
               for the Northern District of Texas
                         (1:95-CV-128-C)


                          November 19, 1996


Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*


     Plaintiff-Appellant James E. Collins, a state prisoner in

Texas, proceeding   pro   se   and   in   forma   pauperis,   appeals   the

dismissal of his 42 U.S.C. § 1983 civil rights action as frivolous

under 28 U.S.C. § 1915(d), now redesignated as § 1915(e)(2)(B)(i).


     *
       Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Collins urges that the district court abused its discretion in

dismissing his pro se complaint, which implicated his warrantless

arrest as well as his incarceration by Defendant-Appellant James D.

Reeves, Sheriff of Stephens County, Texas, for a protracted period

of time without a hearing.         For the reasons set forth below, we

vacate the judgment of dismissal and remand for further proceedings

consistent with this opinion.

                                      I

                           FACTS AND PROCEEDINGS

     In his civil rights suit against Sheriff Reeves, Collins

alleged that “I was arrested on Dec. 14th by Sheriff Jim Reeves,

taken to Jail without ever seeing a magistrate or being present at

a bond hearing.         I was held 117 days without being formally

charged.       At the time of my arrest there was no formal charge or

warrant against me.” The district court dismissed the complaint as

frivolous pursuant to 28 U.S.C. § 1915(d).1            The court construed

the complaint to allege as error (1) that Collins was placed in

jail without first being taken to a magistrate or being present at

a bond hearing, which the court rejected because there is no

requirement that a hearing be held before a person is incarcerated;

(2) that Collins was held 117 days without being formally charged,

which    the    court   rejected   because   Sheriff    Reeves,   the   only

defendant, would not be responsible for charging Collins and thus

     1
        Now § 1915(e)(2)(B)(i).    See § 804, Prison Litigation
Reform Act (PLRA), Pub.L. No. 104-134, 110 Stat. 1321 (1996).

                                      2
could not be held liable; and (3) that Collins was arrested without

a formal charge or warrant being issued against him, which the

court rejected because circumstances exist under which an officer

may make an arrest without a warrant.         Collins timely appealed.

                                     II

                                  ANALYSIS

     On appeal Collins urges that his warrantless arrest and his

subsequent incarceration without a hearing were unlawful.                   A

district court may dismiss an in forma pauperis (IFP) complaint as

frivolous under § 1915(e) if it lacks an arguable basis in law or

fact.2   We    review   such    dismissals   for   abuse     of   discretion,3

considering whether the district court abused its discretion by

dismissing    the   complaint    without   affording   the    plaintiff   any

opportunity to amend.4          An IFP complaint may not be dismissed

simply because the court finds the allegations to be unlikely.5            If

the plaintiff “might have presented a nonfrivolous section 1983

claim” through a Spears hearing or through a questionnaire, a

dismissal as frivolous is premature.6

     We conclude that the instant dismissal was premature and


     2
        Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Eason v.
Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
     3
         Denton, 504 U.S. at 33.
     4
         Eason, 14 F.3d at 9.
     5
         Id. at 33.
     6
         See Eason, 14 F.3d at 9.

                                      3
therefore an abuse of discretion.              The court misconstrued Collins’

complaint to allege that he was denied a hearing only before

entering jail.          In so doing, the court noted that a warrantless

arrest is permissible “if certain circumstances exist and post-

arrest procedures are timely executed (which Collins does not

allege).”      We perceive such a narrow construction of Collins’ pro

se complaint as being inappropriate here.7               His complaint could be

fairly construed to have alleged that he did not receive a hearing

either before or after his incarceration.

     The       Fourth    Amendment    requires        that   a     probable   cause

determination be made by a judicial officer either before arrest or

promptly thereafter.8        Collins alleges that the district court did

not afford him an opportunity to amend his complaint; neither did

the court order Collins to file a more definite statement, or

conduct    a    Spears    hearing    to   determine      whether     the   “certain

circumstances” referred to by the court were present and whether

“post-arrest procedures” were performed.                Even if Collins has now

been convicted, his claim of unlawful arrest or illegal detention,

standing alone, does not necessarily implicate the validity of the

criminal    prosecution      following        his   arrest   and   detention,   and




     7
       See Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se
litigant’s pleadings and briefs entitled to liberal construction).
     8
        Gerstein v. Pugh, 420 U.S. 103, 119, 125 (1975); County of
Riverside v. McLaughlin, 500 U.S., 44, 56 (1991) (48 hours is
ordinarily sufficiently “prompt”).

                                          4
therefore would not necessarily be barred by Heck v. Humphrey.9

       Under these circumstances we must vacate as premature the

district court’s dismissal of Collins’ complaint, and remand the

case       for   the   further   development   of   Collins’   claims.   As    a

preliminary matter on remand, however, the district court should

examine Collins’ IFP status.           The PLRA amended § 1915 to require

that a prisoner-appellant file a certified copy of his trust-fund

account statement and pay the filing fee, in partial payments, if

the trust-fund statement shows that he can do so.10              The financial

affidavit initially filed by Collins in the district court does not

comply with the requirements for seeking IFP status under the

PLRA.11      Neither has Collins filed documents on appeal in support

of his economic eligibility to proceed IFP. The district court did

not decertify Collins’ IFP status, and as of this writing this

court has not determined whether a prisoner who was proceeding IFP

before the effective date of the PLRA should be allowed to proceed

on appeal IFP without first meeting the new requirements of § 1915.

Nevertheless, prudence dictates that an examination of Collins’ IFP

status should be conducted first by the district court.                       In

connection with such an examination Collins should be instructed to

supplement his filings to comply with the PLRA.

       9
       114 S.Ct. 2364, 2372-73 (1984); Mackey v. Dickson, 47 F.3d
744, 746 (5th Cir. 1995).
       10
             Section 1915(a),(b).
       11
             See § 1915(a)(2).

                                         5
VACATED and REMANDED.




                        6