Robert Procup v. C. Strickland

JOHNSON, Circuit Judge,

dissenting, in which TUTTLE, Senior Circuit Judge, joins:

Though initially in agreement with the majority’s result, upon further reflection I am unable to join it, for I find that the majority does precisely what it protests so loudly that it does not: it sets up decisional criteria that, taken together, have the effect of completely foreclosing the access of prisoners to the federal courtroom. The most obvious precedent for the majority’s approach is, I fear, Byron’s Julia who— even while “whispering T will ne’er consent’ — consented.”1

All prisoners are guaranteed access to federal courts, Bounds v. Smith, 430 U.S. *1078817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977); Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972), and though that right is-neither unconditional nor absolute, the Supreme Court has clearly forbidden the inferior federal courts from interposing restrictions that deprive a prisoner of “adequate, effective, and meaningful” access. Bounds, 430 U.S. at 822, 97 S.Ct. at 1495; Wolff v. McDonnell, 418 U.S. 539, 579-80, 94 S.Ct. 2963, 2986-87, 41 L.Ed.2d 935 (1974); Mitchum v. Purvis, 650 F.2d 647, 648 (5th Cir.Unit B 1981). There can be no question that Robert Procup has abused the federal judicial system by filing scores of frivolous claims. Majority Opinion ante, at 1070. Nor can there be any suggestion that Procup is alone in his discovery of this modus operandi or that it does not pose serious problems for the courts. See, e.g., Harrelson v. United States, 613 F.2d 114, 116 (5th Cir. 1980) (per curiam) (non-criminal); Castro v. United States, 775 F.2d 399, 410 (1st Cir.1985) (per curiam) (non-criminal); Abdullah v. Gatto, 773 F.2d 487, 488 (2d Cir.1985) (per curiam) (criminal); Franklin v. Murphy, 745 F.2d 1221, 1231-32 (9th Cir.1984) (criminal); In re Green, 669 F.2d 779, 786 (D.C.Cir.1981) (per curiam) (criminal).

I have no quarrel with the notion that trial courts may restrict, though not interdict, court access by prisoners who abuse the adjudicatory process. Nor am I unmindful of the need to minimize the burden created by frivolous lawsuits of any ilk. But in our haste to respond to the “explosion of prisoner litigation in the federal courts,” Majority Opinion ante, at 1071, we must keep paramount in our minds a concern for “the fine line between legitimate restraints and an impermissible restriction on a prisoner’s constitutional right of access to the courts.” Id. ante, at 1072. In responding to this sensitive problem courts must be especially careful to craft remedies “narrowly drawn to fit the specific vice encountered.” Castro, 775 F.2d at 410; Abdullah, 773 F.2d at 488; Wood v. Santa Barbara Chamber of Commerce, 705 F.2d 1515, 1525 (9th Cir.1983), cert. denied, 465 U.S. 1081, 104 S.Ct. 1446, 79 L.Ed.2d 765 (1984). I write in dissent to emphasize that the Court’s opinion is based upon and approves illegal restrictions on prisoner access to the courts. It sanctions access restrictions that standing alone might or might not be unobjectionable but which “taken together [are] so burdensome as to deny the litigant meaningful access to the courts.” Green, 669 F.2d at 786; Abdullah, 773 F.2d at 488.

First, the majority endorses limiting abusive prisoner litigants to filing “only [in forma pauperis] claims alleging actual or threatened physical harm; and requiring payment of a filing fee to bring other claims,” Majority Opinion ante, at 1072, and limiting “the number of filings by a particular inmate” in a given time period to a given number, id.

The common thread that has guided all courts of appeals in reviewing restrictions on court access has been the firm conviction that the relevant statute places upon the courts the ultimate responsibility for determining which claims are frivolous and which are not. See, e.g., Johnson v. Kemp, 781 F.2d 1570 (11th Cir.1986) (per curiam); Phillips v. Mashburn, 746 F.2d 782 (11th Cir.1984) (per curiam); Urban v. United Nations, 768 F.2d 1497 (D.C.Cir.1985) (per curiam); Sires v. Gabriel, 748 F.2d 49 (1st Cir.1984) (per curiam); In re Martin-Trigona, 737 F.2d 1254 (2d Cir.1984), cert. denied, — U.S. -, 106 S.Ct. 807, 88 L.Ed.2d 782 (1986); Carter v. United States, 733 F.2d 735 (10th Cir.1984) (per curiam), cert. denied, — U.S. -, 105 S.Ct. 915, 83 L.Ed.2d 928 (1985). When Congress wrote 28 U.S.C.A. § 1915(a) (1985), providing for in forma pauperis suits and vesting in the trial courts limited latitude to dismiss such cases if “frivolous or malicious,” id. at § 1915(d), it penned a prescription for individualized, case-by-case determination of the merit or frivolity of each filing. Green, 669 F.2d at 786; Carter, 733 F.2d at 737. On appeal we will not normally prescribe the particular method by which a trial court will undertake this determination, but we are nonetheless *1079bound to compel the trial court to exercise some particularized review. Steffler v. United States, 319 U.S. 38, 41, 63 S.Ct. 948, 949, 87 L.Ed. 1197 (1943) {per curiam). To countenance any review less probing is inconsistent with the dictates of the statute. Green, 669 F.2d at 786.

This Court has recognized that the decision to dismiss as frivolous is entrusted to the “broad discretion” of the trial court. Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir.1983) (per curiam). My quarrel with the majority is with the assumption that, under the rubric of “discretion,” we can permit trial courts to issue a blanket ruling that certain types or more than a certain number of filings are, ipso facto, frivolous. “Discretion” connotes more than a mere arithmetic counting of filings as determinative of the likely merits of any subsequent claim. “Instead, one must analyze the nature of plaintiffs litigation in light of the scope of the Section 1915 privilege and additionally pinpoint specific abuses to which appropriate responsive remedies can be tied.” Carter v. Telectron, Inc., 452 F.Supp. 944, 990 (S.D.Tex.1977). The trial court may not, we have clearly held, “act arbitrarily and it may not deny the application on erroneous grounds.” Pace, 709 F.2d at 1429; Johnson, 781 F.2d at 1572 (reversing trial court for setting restrictions on frivolous prisoner filings “on the basis of litigation history without regard to the particular circumstances thereof and their relevance to the [restriction imposed].”); Flowers v. Turbine Support Division, 507 F.2d 1242, 1244 (5th Cir.1975). I have difficulty conjuring a more obvious recipe for arbitrary or erroneous decision-making than the issuance of a per se limit on the filing of claims of abuse either to an arbitrarily selected number (say six, as the majority suggests) or unless the abuse is physical in nature.

The majority’s approach will erect a complete bar preventing some prisoners from presenting valid, actionable claims of constitutional magnitude2 simply because the delict is something other than physical abuse or follows on the heels of a randomly selected “magic number” of previous filings that year. To that extent, the majority’s approach violates the Fifth and Fourteenth Amendments to the United States Constitution.3 Franklin v. Murphy, 745 F.2d 1221, 1232, (9th Cir.1984); Green, 669 F.2d at 786. The effect of the majority’s limitation is to rewrite the statutory provisions Congress provided. The majority also sanctions the trial court’s abdication of its obligation to determine if it should take the awesome step of interdicting the access of a citizen to the courts of justice. It creates an irrebuttable presumption that, at least for some, no claim of non-physical abuse is worthy of even cursory consideration.

Second, I find troubling the majority’s willingness to restrict in forma pauperis actions to those alleging claims of physical harm while permitting other such actions to go forward only upon “payment of a filing fee.” Majority Opinion ante, at 1072. Proceeding in forma pauperis is a privilege and not a right. 28 U.S.C.A. § 1915(d). Nevertheless, when a prisoner presents a meritorious allegation of constitutional deprivation in the form of an in forma pauperis civil action, and he has no other reasonable avenue to secure relief, he simply may not be required to pay a filing *1080fee. Boddie v. Connecticut, 401 U.S. 371, 380-82, 91 S.Ct. 780, 787-88, 28 L.Ed.2d 113 (1971);4 Davis v. Page, 618 F.2d 374, 383 n. 9 (5th Cir.1980), cert. denied sub nom. Davis v. Gladstone, 464 U.S. 1052, 104 S.Ct. 735, 79 L.Ed.2d 194 (1984). I see no principled basis for pretermitting Bod-die’s holding merely because the valid claim comes to the court amid a sea of frivolous suits.

I object to the fee requirement for a second reason: it has the effect of erecting a hierarchy of value preferences within the Fifth and Fourteenth Amendments. Henceforth, the Court determines, for a discrete class of litigants non-physical abuse is either a due process violation of a lesser order or, more accurately, no longer an actionable deprivation at all. I had always thought that the Constitution protected citizens against due process and equal protection violations be they in the form of physical or emotional abuse, derogation of civil rights, denial of legal process, or any other of the congeries of rights subsumed under the banner of the Fifth and Fourteenth Amendments.

Third, the majority suggests that trial courts may require “a plaintiff to file an affidavit setting forth what attempts he has made to obtain an attorney to represent him.” Majority Opinion ante, at 1073. The purpose of this restriction is puzzling. The Court evidently assumes that the tide of frivolous suits may be stemmed by requiring a prisoner to secure counsel, in the expectation that doing so will introduce an element of restraint. Presumably this restraint results from fear of sanctions available under Fed.R.Civ.P. 11.

The Court’s reliance on this restriction is misplaced for two reasons. To the extent that the majority uses Rule 11 sanctions as a means to minimize frivolous filings there is little advantage to be gained by the requirement of counsel. Rule 11 sanctions are equally available for use against lawyers and pro se litigants. But more importantly, the clear implication of the Court’s requirement is that if a prisoner can obtain counsel he must obtain counsel. This is squarely at odds with the right to self-representation protected by the Sixth Amendment, Faretta v. California, 422 U.S. 806, 832-34, 95 S.Ct. 2525, 2539-41, 45 L.Ed.2d 562 (1975), and by statute, 28 U.S.C.A. § 1654 (1985).

Fourth, the majority proposes that trial courts may elect to impose “limitation of further pleadings without order of court, after the complaint has been filed.” Majority Opinion ante, at 1073. My objection here is two-fold. By placing limitations on subsequent “pleadings,” rather than on subsequent “causes of action,” the majority permits a prisoner to start an action but makes it extraordinarily difficult for him to resolve it expeditiously. Each time an in forma pauperis prisoner seeks to file a reply brief, to tender a motion for summary judgment or to respond to one, to compel discovery — in short to engage in the usual motion practice — he must wait upon the trial court for a specific grant of leave to file. If our objective is to minimize the diversion of court resources to frivolous *1081cases, this seems an odd way to effect that goal.

If the majority’s opinion is interpreted to limit a prisoner’s filing of subsequent causes of action, this argument fails for the reasons I advanced in considering the Court’s proposed limitation on filings to a given number or type of injury. The simple fact that one delict has already occurred is in no way indicative of the likely merits of subsequent claims. Such a limitation, I believe, impermissibly deprives the prisoner of “adequate, effective, and meaningful” access to the courts. Bounds, 430 U.S. at 822, 97 S.Ct. at 1495; Mitchum v. Purvis, 650 F.2d at 648.

Finally, I take exception to the majority’s opinion in a fifth respect. The Court suggests that one means of curbing frivolous litigation is by entering injunctions against so-called “jailhouse lawyers” who help prisoners generate dozens of meritless complaints. The Supreme Court has determined that prisoners have, at least in limited circumstances, a protected interest in access to an inmate writ writer. Johnson v. Avery, 393 U.S. 483, 490, 89 S.Ct. 747, 751, 21 L.Ed.2d 718 (1969). It is clear that states retain power to impose certain limitations on the activities of such persons, or even to forbid them from plying their craft. Id. But we are not properly called upon today to consider or decide the scope of that power. Procup is his own publicist. He relies on his own wits to generate his pleadings. Accordingly, that portion of the majority’s holding is obiter dictum.

The majority’s opinion represents a response to what it perceives as a serious threat to the integrity of the adjudicatory process. We must always be careful as judges not to sound the alarm too hastily. We must be even more careful not to become swept up in our own rhetoric and on that account to attack problems with blunt, poorly chosen tools that inflict damage of a constitutional sort far worse than the blight we set out to excise. The majority today does just that. It makes available a plethora of access restrictions that are ill-advised and ill-suited to the task at hand. I am unable to join in its opinion. Therefore, with deference, I dissent.

. Byron, Don Juan, canto I, st. 117 (1818).

. Admittedly the Supreme Court has narrowed the scope of constitutionally-based claims of deprivation that prisoners may bring, see e.g., Parrott v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), Daniels v. Williams, — U.S.-, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). But there is nothing in any of the Court’s recent statements to suggest that valid claims of deprivation need not be heard simply because a prisoner has in the past abused the judicial process.

. The majority acknowledges at its footnote 6 that a complete ban on all in forma pauperis filings by a litigant is impermissible. But it apparently holds that by leaving the courthouse door slightly ajar — so that a limited number of claims, or claims of a particular type, can slip inside — it has made adequate provision for the constitutional right of court access. Clearly the Fifth and Fourteenth Amendments require more.

. Indeed, the Court in Boddie neatly anticipated and rejected the majority’s rationale for using fees to weed out frivolous claims:

The arguments for [imposing fees and costs in bringing a civil action for divorce] are that the State’s interest in the prevention of frivolous litigation is substantial, its use of court fees and process costs to allocate scarce resources is rational, and its balance between the defendant’s right to notice and the plaintiffs right to access is reasonable.
In our opinion, none of these considerations is sufficient to override the interest of these plaintiff-appellants in having access to the only avenue open for [securing the relief sought]. Not only is there no necessary connection between a litigant’s assets and the seriousness of his motives in bringing suit, but it is here beyond present dispute that appellants bring these actions in good faith. Moreover, other alternatives exist to fees and costs requirements as a means for conserving the time of courts and protecting parties from frivolous litigation____

Boddie, 401 U.S. at 381-82, 91 S.Ct. at 788.

Of course, the majority can find no refuge in the bona fide nature of the claims in Boddie, for it here declines to provide prisoners with the opportunity to demonstrate that their claims are in good faith brought. Rather, the majority simply assumes that they are not.