Frank Lee Mikeska, James Logan Diez, and Walter D. Williams v. James A. Collins, Director, Texas Dept. Of Criminal Justice, Institutional Division

900 F.2d 833, 1990 U.S. App. LEXIS 7619, 1990 WL 51175
CourtCourt of Appeals for the Fifth Circuit
DecidedMay 11, 1990
Docket88-2276
StatusPublished
Cited by21 cases

This text of 900 F.2d 833 (Frank Lee Mikeska, James Logan Diez, and Walter D. Williams v. James A. Collins, Director, Texas Dept. Of Criminal Justice, Institutional Division) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frank Lee Mikeska, James Logan Diez, and Walter D. Williams v. James A. Collins, Director, Texas Dept. Of Criminal Justice, Institutional Division, 900 F.2d 833, 1990 U.S. App. LEXIS 7619, 1990 WL 51175 (5th Cir. 1990).

Opinions

POLITZ, Circuit Judge:

Four inmates of the Texas Department of Criminal Justice Institutional Division (TDCJ), formerly the Texas Department of Corrections,1 invoked 42 U.S.C. § 1983, complaining of administrative punishment for refusing to work. After conducting a Spears2 hearing, the district court dismissed the complaint as frivolous under 28 U.S.C. § 1915(d). We affirm.

Background

Frank Lee Mikeska, Antonio Crecelius, James Logan Diez, and Walter D. Williams filed the instant complaint challenging TDCJ’s treatment of inmates placed in administrative segregation for refusing to work. They complained of: overcrowded living conditions; excessive cell time; lack of recreation periods; being escorted to showers, meals and other destinations; erratic meal schedules; and the manner in which food is served. They also complained that inmates in this classification are subject to stricter rules, less eating time, and other restrictions regarding attendance at religious, group therapy, and education services. Diez also complains that the TDCJ work assignments constitute involuntary servitude proscribed by the Constitution. Proceeding pro se, complainants sought in forma pauperis status under 28 U.S.C. § 1915(a).

Complainants appeared at a Spears hearing and were given an opportunity to explain and expand their allegations in what effectively was an oral amendment of the complaint. Evaluating the complaint as thus amended the district court invoked 28 U.S.C. § 1915(d) and dismissed the suit as frivolous. A notice of appeal naming all four inmates, but signed only by Diez, was filed timely.

[835]*835 Analysis

As a threshold consideration we must determine whether we have jurisdiction over this appeal. Although no party questions our jurisdiction, we are bound to do so sua sponte, for ours is a court of limited jurisdiction. Thompson v. Betts, 754 F.2d 1243 (5th Cir.1985). In this case part of our appellate jurisdiction turns on whether the notice of appeal brings before this court the claims of the three complainants who were named in but did not sign the notice. Our earlier decisions guide today’s disposition of this issue.

In McNeil v. Blackburn, 802 F.2d 830 (5th Cir.1986), a pro se plaintiff-appellant timely filed an unsigned notice of appeal. We concluded that the notice was valid, invoking our jurisdiction. In reaching this conclusion we noted that the Federal Rules of Appellate Procedure do not require that notices of appeal be signed.3 McNeil involved a sole plaintiff-appellant.

Subsequently we addressed a case involving three pro se complainants. In Smith v. White, 857 F.2d 1042 (5th Cir.1988), Smith, one of the three complainants, signed and timely filed a notice of appeal which named all three complainants. The others did not sign and Smith is not an attorney. The clerk of the district court returned the notice of appeal for the signatures of the others. Smith responded by filing a second notice naming only himself as an appellant. Although the second notice was not filed until after the appeal period had expired, we held that Smith had taken a valid appeal. In dicta we expressed a preference for a rule which would provide that a pro se notice of appeal filed by one who is not an attorney would be valid only as to those appellant(s) signing, despite the listing of the nonsign-ing appellant(s) in the notice. Smith, 857 F.2d at 1043 (citing 9 Moore’s Federal Practice, ¶ 203.17 at 3-73); Covington v. Allsbrook, 636 F.2d 63 (4th Cir.1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1990, 68 L.Ed.2d 305 (1981). See also Theriault v. Silber, 579 F.2d 302 (5th Cir.1978), cert. denied, 440 U.S. 917, 99 S.Ct. 1236, 59 L.Ed.2d 468 (1979).

The case at bar presents a factual situation different from that actually ruled on in either McNeil or Smith. The questions we address today, which we view as res nova, ask; In a pro se proceeding involving two or more potential appellants, if a person listed as an appellant does not sign the notice of appeal does that constitute a jurisdictional or a procedural defect? If procedural, is the defect curable, and if so, how? In answering these questions we must examine the contents and contours of Fed.R. App.P. 3(c), as recently interpreted by the Supreme Court in Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988).

In Torres, the name of one of 16 petitioners was inadvertently omitted from the notice of appeal, raising the question whether appellate jurisdiction existed as to that individual. As the Court emphasized, the omitted petitioner “was never named or otherwise designated, however inartfully, in the notice of appeal filed by the 15 other inter-venors.” Torres, 487 U.S. at 318, 108 S.Ct. at 2409, 101 L.Ed.2d at 292 (emphasis added). This failure to name an appellant, the Court reasoned, contravened the purpose underlying Rule 3(c): “[T]o provide notice both to the opposition and to the court of the identity of the appellant or appellants.” Id. We perceive the motif princeps of Torres, and the jurisdictional threshold it defines, to be the requirement that the notice of appeal adequately inform the court and the appellee of the identity of the complaining appellants.

In the case at bar the identities of all who might appeal are known, for all complainants are listed in the notice of appeal. The jurisdictional threshold of Torres is thus satisfied. See 9 Moore’s Federal Practice, ¶ 203.17 at 3-17 n. 17. Before us, [836]*836however, is a pro se filing by a complainant-appellant who is not an attorney, a fact which raises distinct systemic concerns because not all of the pro se litigants named in the notice of appeal have signed that instrument. First, the appellee and the court must know who is appealing. Further, although pro se litigants, particularly those proceeding in forma pauperis,

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Bluebook (online)
900 F.2d 833, 1990 U.S. App. LEXIS 7619, 1990 WL 51175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-lee-mikeska-james-logan-diez-and-walter-d-williams-v-james-a-ca5-1990.