Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 89-1638.
Becker, Greenberg, & Van Dusen, Circuit Judges.
This is a prisoner's civil rights case, 42 U.S.C. § 1983, in which the district court, after the initial grant of in forma pauperis status, 28 U.S.C. § 1915(a), and service of process on certain defendants, dismissed the complaint as legally frivolous under 28 U.S.C. § 1915(d). Plaintiff, Jason Roman, an inmate at Lehigh County Prison in Allentown, PA, proceeding pro se, appeals from this judgment. The appeal presents the important question whether dismissal of a complaint as frivolous pursuant to § 1915(d) is appropriate at that stage of the proceeding. We conclude that it is not, and that the district court erred in sua sponte dismissing the complaint as frivolous after it had been served on opposing counsel. Alternatively, we hold that the complaint, even without amendment, had arguable merit which would foreclose a § 1915(d) dismissal. Accordingly, we will vacate the district court's order and remand the case to the district court for further proceedings.
In March, 1989, plaintiff filed a civil rights action in the district court for the Eastern District of Pennsylvania, asserting violations of his constitutional rights. Named as defendants were various prison officials of the Lehigh and Northampton County prison systems, as well as Lehigh and Northampton Counties. Plaintiff asserted that his constitutional rights were violated because, upon his February 13, 1989 transfer from the Northampton County prison to the Lehigh County prison, he was permitted to bring only one bag of possessions with him and thus had to leave some legal materials behind at the Northampton County prison. Plaintiff requested the court to order the seizure of his legal materials from the Northampton County prison and to order the Lehigh County prison to allow him to keep all of his legal materials with him. Plaintiff moved to proceed in forma pauperis at the time he filed his complaint.
On May 2, 1989, the district court granted plaintiff in forma pauperis status under 28 U.S.C. § 1915(a), but dismissed the claims against Lehigh and Northampton Counties as frivolous under 28 U.S.C. § 1915(d).*fn1 The court ordered that the remaining individual defendants be served with the complaint. The individual defendants then filed answers to the complaint but did not file motions to dismiss under Fed.R.Civ.P. 12(b)(6). Plaintiff subsequently filed motions for "records and court order," for "writ of seizure of personal and legal property," for appointment of counsel, for permission to amend the complaint, and for default judgment. The district court denied all of plaintiff's motions on June 14, 1989. Also on June 14, 1989, the district court sua sponte dismissed the rest of plaintiff's complaint as frivolous, again pursuant to 28 U.S.C. § 1915(d). The district court did so because it concluded that plaintiff was seeking to litigate the same claims raised in another, class action, lawsuit filed against various Lehigh County prison officials, Vazquez v. Carver, E.D.Pa.Civ. No. 86-3020.
Plaintiff timely filed a notice of appeal, and we granted leave to proceed in forma pauperis on appeal in order to determine the propriety of the § 1915(d) dismissal in this case. Our review of a district court decision dismissing a complaint as frivolous is plenary. Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).
Under 28 U.S.C. § 1915(d), a district court is authorized to dismiss as frivolous claims based on an indisputably meritless legal theory and claims whose factual contentions are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338 (1989). "Within the former category fall those cases in which either it is readily apparent that the plaintiff's complaint lacks an arguable basis in law or that the defendants are clearly entitled to immunity from suit; within the latter are those cases describing scenarios clearly removed from reality." Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir. 1990). A complaint that arguably states a claim should go forward.
Neitzke identified two goals underlying the district court's power to grant in forma pauperis status and dismiss under 28 U.S.C. § 1915(d): (1) insuring that all litigants receive equal consideration and the protection of the Federal Rules of Civil Procedure,*fn2 and (2) weeding out claims that lack an arguable basis in law and fact.*fn3 Neitzke, 109 S. Ct. at 1834. Neitzke makes clear that dismissal of a complaint or claim as frivolous pursuant to § 1915(d) is not governed by the same standard as dismissal under Rule 12(b)(6) for failure to state a claim. Complaints that fail to state a claim under Rule 12(b)(6) are not "automatically" frivolous under § 1915(d). Neitzke, 109 S. Ct. at 1827. Rather, "Rule 12(b)(6) countenances the dismissal of a suit 'if as a matter of law it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Abdul-Akbar v. Watson, 901 F.2d 329, slip op. at 11 (3d Cir. 1990) (quoting Neitzke, 109 S. Ct. at 1832). The district court's power to dismiss as frivolous under § 1915(d), on the other hand, is limited to screening out only those claims that are based on an indisputably meritless legal theory or whose factual contentions are clearly baseless.*fn4 Neitzke, 109 S. Ct. at 1833. The fact that § 1915(d) authorizes dismissal of only frivolous claims suggests that those claims which survive the threshold determination of nonfrivolousness, even those that ultimately may be dismissed for failure to state a claim under Rule 12(b)(6), should go forward according to the adversary mode of the Federal Rules of Civil Procedure.*fn5 The defendants then can answer, and the plaintiff can receive notice of the possibility of a Rule 12(b)(6) dismissal and be given an opportunity to amend the complaint in order properly to state a legal claim. Wilson, 878 F.2d at 774.
In light of the Supreme Court's reasoning in Neitzke and the underlying purposes of § 1915, we hold that the appropriate time to make a decision to dismiss a case pursuant to § 1915(d) is before service of a complaint.*fn6 Accord Williams v. White, 897 F.2d 942, 944 n. 1 (8th Cir. 1990) (Section 1915(d) should be used to screen out frivolous claims only at the outset of litigation, before service).
In the instant case, the district court granted plaintiff leave to proceed in forma pauperis, dismissed the claims against the Counties of Lehigh and Northampton as frivolous pursuant to § 1915(d), ordered service of the complaint on the remaining individual defendants (various prison officials), and then, after answers were received, sua sponte dismissed the remaining claims as frivolous. However, for the reasons we have stated, we believe that once the district court made the initial threshold determination that some of the claims were not frivolous and that service should issue, the court should not have subsequently used § 1915(d) to dispose of those originally non-frivolous claims. First, dismissing the case as frivolous after service on defendants does not serve the Neitzke goal of using § 1915(d) to weed out frivolous claims at the outset. Second, the threat of § 1915(d) dismissal at any time in the course of litigation accords ...