ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 95-01728)
Before: GREENBERG, NYGAARD and LEWIS, Circuit Judges
Submitted Under Third Circuit LAR 34.1(a)
Melvin P. Deutsch appeals from an order that dismissed his in forma pauperis complaint as "frivolous or malicious" within the meaning of 28 U.S.C. Section(s) 1915(d) (1988); the district court determined that the relief Deutsch sought was a "trifle" and thus not worthy of adjudication. We will affirm, but for reasons other than those offered by the district court. We hold that a court may dismiss an in forma pauperis claim as frivolous if, after considering the contending equities, the court determines that the claim is: (1) of little or no weight, value, or importance; (2) not worthy of serious attention; or (3) trivial.
Deutsch filed a motion to proceed in forma pauperis and a complaint, alleging that prison guards took his writing pens and never returned them. Deutsch also alleged that he had filed a tort claim with the federal government in September 1994, but that the government declined to offer a settlement because it found no evidence that his pens had been taken. Deutsch then filed this action, which the district court properly construed as a claim under the Federal Tort Claims Act, 28 U.S.C. Section(s) 1346(b), 2671-2680 (1988). Deutsch requested $4.20 for his pens, plus litigation costs, attorney's fees, and interest.
The district court granted Deutsch leave to proceed in forma pauperis but dismissed the complaint under Section(s) 1915(d). The district court determined that the $120 filing fee paid by every non-indigent plaintiff has the practical effect of precluding insubstantial claims seeking solely monetary damages. It concluded that the in forma pauperis legislation was not intended to encourage indigent plaintiffs to assert claims that a non-indigent plaintiff would not. The district court was unable to conclude that the case was legally or factually frivolous, or that it was brought for a malicious purpose, but instead determined that under the doctrine of de minimis non curat lex, *fn1 plaintiff's claim, which is limited solely to monetary damages in the amount of $4.20, was encompassed by the phrase `frivolous or malicious' as used in Section(s) 1915(d). Accordingly, it dismissed the complaint.
Deutsch filed a notice of appeal and a motion for leave to appeal in forma pauperis. We notified the parties that we would consider summary action pursuant to Internal Operating Procedure 10.6. Deutsch did file a summary action response. We will consider this appeal on the district court record and the United States Attorney's response. *fn2
We have held that an order dismissing a complaint without prejudice is not final under Section(s) 1291, and thus not appealable. Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976) (per curiam). In Borelli, we recognized that an exception to this jurisdictional rule exists if the plaintiff either cannot cure the defect that led to dismissal or elects to stand on the dismissed complaint. Id. at 951-52.
Here, the district court failed to specify whether the 1915(d) dismissal was with or without prejudice, and there is no indication in the opinion accompanying the dismissal order that the court expected Deutsch to file a curative complaint. Although the filing of a paid complaint has not been prejudiced, we will review the order appealed pursuant to Section(s) 1291. The district court's order is in essence final, because an in forma pauperis plaintiff must be afforded appellate review of a determination that he is required to pay all or a portion of the court costs and filing fees to file a claim, either because he does not qualify for in forma pauperis status or because his complaint is frivolous. See Roberts v. United States Dist. Court, 339 U.S. 844, 845, 90 S. Ct. 954, 94 L.Ed.2d 1326 (1950) (per curiam) (order denying leave to proceed in forma pauperis is final, collateral order that is appealable under Section(s) 1291); see also Sinwell v. Shapp, 536 F.2d 15, 16 (3d Cir. 1976).
Alternatively, if the plaintiff has expressed an intent to stand on the dismissed complaint, or if it appears that the plaintiff could do nothing to cure the complaint's defects, then the order is likewise appealable under Section(s) 1291. Riley v. Simmons, 45 F.3d 764, 770 (3d Cir. 1995); Presbytery of N.J. Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1461-62 n.6 (3d Cir. 1994). Here, it appears that Deutsch could not cure the defect that led to dismissal because the relief he sought was determined to be too small an amount to survive 1915(d) scrutiny. Accordingly, we conclude the order is appealable under Section(s) 1291.
We apply a deferential abuse of discretion standard when reviewing a district court's decision to dismiss an in forma pauperis complaint under Section(s) 1915(d). Denton v. Hernandez, 504 U.S. 25, 33, 112 S. Ct. 1728, 118 L.Ed.2d 340 (1992). However, even within this narrow scope of review, to the extent that the district court, in the course of its frivolousness determination, engaged in the choice, application, and interpretation of legal precepts, our review is plenary. See Louis W. Epstein Family Partnership v. ...