LAY, Senior Circuit Judge, concurring:
I am pleased to concur in Chief Judge Hatchett’s excellent
opinion holding (1) that the filing fee provisions of the PLRA do
not violate a prisoner's equal protection rights, and (2) that the
procedural mechanism for dismissal of in forma pauperis (IFP) suits
found in § 1915(e)(2) may be applied retroactively. I write
separately, however, to note my concern as to the constitutionality
of § 1915(e)(2)(B)(ii), which allows sua sponte dismissal of an IFP
complaint that fails to state a claim upon which relief may be
granted.
This case comes to us in an unusual posture. On June 18,
1996, the district court, without service of process, summarily
dismissed Mitchell's pro se complaint as failing to state a claim for relief, applying the dismissal standard of Fed. R. Civ. P.
12(b)(6). On July 31, 1996, the district court granted Mitchell
leave to appeal IFP, assessing him filing fees pursuant to the new
provisions of § 1915(b). The only issues decided by the district court related to whether Mitchell had filed a complaint sufficient
to withstand dismissal under the new act. On January 28, 1997,
this court ordered an expedited appeal and appointed counsel.
Although issues regarding the PLRA were not raised or briefed in
the district court, this court requested that counsel address the
constitutionality of § 1915(b), and the retroactive effect, if any,
of § 1915(e)(2). I am informed that one of the reasons this court
took this action is that several hundred cases in the district
courts of the Eleventh Circuit are awaiting a decision on the constitutionality and retroactivity of the PLRA. In addition, it
should be obvious that the court took this liberty because this
petitioner appeared pro se in the district court, and because of
the importance of these issues to all IFP litigants.
Litigants and district courts, however, should not be confused
by the path of this litigation. Additional constitutional
challenges to the PLRA, including the one I articulate today, are
not foreclosed by this court’s opinion. I write this concurring
opinion to note my concern with the substance of §
1915(e)(2)(B)(ii), used in this case, which I feel is
constitutionally flawed. Since this court raised the
constitutional issues on its own, it seems to me our opinion should
be expanded to consider this additional constitutional concern.
It is my view that in this section, Congress has deprived
prisoners and other indigents1 of a significant procedural right
1 Section 1915(e) applies to all IFP litigants—prisoners who pay fees on an installment basis, prisoners who pay nothing, and nonprisoners in both categories. Therefore, in my discussion of § 1915(e), I will usually use the term “IFP litigants” to encompass all of these individuals. I note, however, that the group most affected by § 1915(e) will be prisoners, simply because they make up such a large fraction of IFP litigants. In addition, the 1996 statute’s purpose is to curtail prisoner litigation, a point exemplified not only by its title, but also by the ambiguous language in § 1915(a), which purports to apply to any “person,” but only if that person “submits an affidavit that includes a statement of all assets such prisoner possesses.” (emphasis added). This section obviously needs clarification. See Floyd v. United States Postal Serv., 105 F.3d 274, 275 (6th Cir. 1997) (“Despite the use of the term ‘prisoner possesses,’ we conclude that a typographical error in the final version of the statute occurred and that Congress actually intended the phrase to be ‘person possesses.’”).
2 that noninstitutionalized paying litigants enjoy, and has not
provided a rational justification for this differential treatment.
Under the earlier version of the IFP statute, the district
court was empowered and instructed to dismiss an IFP application
sua sponte if it deemed the suit was frivolous or malicious. 28
U.S.C. § 1915(d) (1994). This rule was in accord with the
established principle that a patently frivolous complaint may be
dismissed for want of subject matter jurisdiction under Fed. R.
Civ. P. 12(b)(1). Neitzke v. Williams, 490 U.S. 319, 327 n.6
(1989) (citing Hagans v. Lavine, 415 U.S. 528, 536-37 (1974); Bell v. Hood, 327 U.S. 678, 682-83 (1946)). The obvious rational basis
for such peremptory action was that the government should not incur
expenses in serving parties sued in frivolous actions. Thus, named
defendants were typically not required to respond to these suits.
See Neitzke, 490 U.S. at 324 (“Dismissals on these grounds are
often made sua sponte prior to the issuance of process, so as to
spare prospective defendants the inconvenience and expense of
answering such complaints.”). Section 1915(d)’s successor, 28 U.S.C. § 1915(e), applied here to Mitchell’s complaint, allows
courts to dismiss a complaint sua sponte not only for
frivolousness, but also for failure to state a claim on which
relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).2 While
2 Section 1915(e)(2) reads as follows:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that—
(A) the allegation of poverty is untrue; or
3 courts have recognized that this seemingly innocuous change is a
significant expansion of the court’s power, see, e.g., Douglas v.
DeBruyn, 936 F. Supp. 572, 579 n.4 (S.D. Ind. 1996), nothing in the
legislative history of the statute indicates that Congress was
aware of the real meaning of the change. See 141 Cong Rec. S14413-
S14419 (daily ed. Sept. 27, 1995); 141 Cong. Rec. S7525-S7527
(daily ed. May 25, 1995).
The difference between dismissal for frivolousness and
dismissal for failure to state a claim was explained by the Supreme
Court in Neitzke, which interpreted § 1915(d) of the old IFP statute. The Neitzke Court, as a matter of statutory
interpretation, was critical of the district court in conflating
the standards of frivolousness under the old §1915(d) and failure
to state a claim upon which relief could be granted. The Supreme
Court observed that the error in doing so denied "indigent
plaintiffs the practical protections against unwarranted dismissal
generally accorded paying plaintiffs under the Federal Rules." 490
U.S. at 330. Neitzke recognized that protection from sua sponte dismissal for failure to state a claim is a meaningful right:
(B) the action or appeal—
(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
Its predecessor read, “The court may . . . dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” 28 U.S.C.
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LAY, Senior Circuit Judge, concurring:
I am pleased to concur in Chief Judge Hatchett’s excellent
opinion holding (1) that the filing fee provisions of the PLRA do
not violate a prisoner's equal protection rights, and (2) that the
procedural mechanism for dismissal of in forma pauperis (IFP) suits
found in § 1915(e)(2) may be applied retroactively. I write
separately, however, to note my concern as to the constitutionality
of § 1915(e)(2)(B)(ii), which allows sua sponte dismissal of an IFP
complaint that fails to state a claim upon which relief may be
granted.
This case comes to us in an unusual posture. On June 18,
1996, the district court, without service of process, summarily
dismissed Mitchell's pro se complaint as failing to state a claim for relief, applying the dismissal standard of Fed. R. Civ. P.
12(b)(6). On July 31, 1996, the district court granted Mitchell
leave to appeal IFP, assessing him filing fees pursuant to the new
provisions of § 1915(b). The only issues decided by the district court related to whether Mitchell had filed a complaint sufficient
to withstand dismissal under the new act. On January 28, 1997,
this court ordered an expedited appeal and appointed counsel.
Although issues regarding the PLRA were not raised or briefed in
the district court, this court requested that counsel address the
constitutionality of § 1915(b), and the retroactive effect, if any,
of § 1915(e)(2). I am informed that one of the reasons this court
took this action is that several hundred cases in the district
courts of the Eleventh Circuit are awaiting a decision on the constitutionality and retroactivity of the PLRA. In addition, it
should be obvious that the court took this liberty because this
petitioner appeared pro se in the district court, and because of
the importance of these issues to all IFP litigants.
Litigants and district courts, however, should not be confused
by the path of this litigation. Additional constitutional
challenges to the PLRA, including the one I articulate today, are
not foreclosed by this court’s opinion. I write this concurring
opinion to note my concern with the substance of §
1915(e)(2)(B)(ii), used in this case, which I feel is
constitutionally flawed. Since this court raised the
constitutional issues on its own, it seems to me our opinion should
be expanded to consider this additional constitutional concern.
It is my view that in this section, Congress has deprived
prisoners and other indigents1 of a significant procedural right
1 Section 1915(e) applies to all IFP litigants—prisoners who pay fees on an installment basis, prisoners who pay nothing, and nonprisoners in both categories. Therefore, in my discussion of § 1915(e), I will usually use the term “IFP litigants” to encompass all of these individuals. I note, however, that the group most affected by § 1915(e) will be prisoners, simply because they make up such a large fraction of IFP litigants. In addition, the 1996 statute’s purpose is to curtail prisoner litigation, a point exemplified not only by its title, but also by the ambiguous language in § 1915(a), which purports to apply to any “person,” but only if that person “submits an affidavit that includes a statement of all assets such prisoner possesses.” (emphasis added). This section obviously needs clarification. See Floyd v. United States Postal Serv., 105 F.3d 274, 275 (6th Cir. 1997) (“Despite the use of the term ‘prisoner possesses,’ we conclude that a typographical error in the final version of the statute occurred and that Congress actually intended the phrase to be ‘person possesses.’”).
2 that noninstitutionalized paying litigants enjoy, and has not
provided a rational justification for this differential treatment.
Under the earlier version of the IFP statute, the district
court was empowered and instructed to dismiss an IFP application
sua sponte if it deemed the suit was frivolous or malicious. 28
U.S.C. § 1915(d) (1994). This rule was in accord with the
established principle that a patently frivolous complaint may be
dismissed for want of subject matter jurisdiction under Fed. R.
Civ. P. 12(b)(1). Neitzke v. Williams, 490 U.S. 319, 327 n.6
(1989) (citing Hagans v. Lavine, 415 U.S. 528, 536-37 (1974); Bell v. Hood, 327 U.S. 678, 682-83 (1946)). The obvious rational basis
for such peremptory action was that the government should not incur
expenses in serving parties sued in frivolous actions. Thus, named
defendants were typically not required to respond to these suits.
See Neitzke, 490 U.S. at 324 (“Dismissals on these grounds are
often made sua sponte prior to the issuance of process, so as to
spare prospective defendants the inconvenience and expense of
answering such complaints.”). Section 1915(d)’s successor, 28 U.S.C. § 1915(e), applied here to Mitchell’s complaint, allows
courts to dismiss a complaint sua sponte not only for
frivolousness, but also for failure to state a claim on which
relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).2 While
2 Section 1915(e)(2) reads as follows:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that—
(A) the allegation of poverty is untrue; or
3 courts have recognized that this seemingly innocuous change is a
significant expansion of the court’s power, see, e.g., Douglas v.
DeBruyn, 936 F. Supp. 572, 579 n.4 (S.D. Ind. 1996), nothing in the
legislative history of the statute indicates that Congress was
aware of the real meaning of the change. See 141 Cong Rec. S14413-
S14419 (daily ed. Sept. 27, 1995); 141 Cong. Rec. S7525-S7527
(daily ed. May 25, 1995).
The difference between dismissal for frivolousness and
dismissal for failure to state a claim was explained by the Supreme
Court in Neitzke, which interpreted § 1915(d) of the old IFP statute. The Neitzke Court, as a matter of statutory
interpretation, was critical of the district court in conflating
the standards of frivolousness under the old §1915(d) and failure
to state a claim upon which relief could be granted. The Supreme
Court observed that the error in doing so denied "indigent
plaintiffs the practical protections against unwarranted dismissal
generally accorded paying plaintiffs under the Federal Rules." 490
U.S. at 330. Neitzke recognized that protection from sua sponte dismissal for failure to state a claim is a meaningful right:
(B) the action or appeal—
(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
Its predecessor read, “The court may . . . dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” 28 U.S.C. § 1915(d) (1994).
4 Under Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a claim and an opportunity to amend the complaint before the motion is ruled upon. These procedures alert him to the legal theory underlying the defendant’s challenge, and enable him meaningfully to respond by opposing the motion to dismiss on legal grounds or by clarifying his factual allegations so as to conform with the requirements of a valid legal cause of action.
Id. at 329-30. The PLRA strips this right only from IFP litigants,
denying them equality of treatment in the federal courts. See id.
at 330 (noting the unfairness in applying the failure to state a
claim dismissal standard to § 1915(d), because an indigent
litigant’s complaint “whose only defect was its failure to state a
claim, will in all likelihood be dismissed sua sponte, whereas an identical complaint filed by a paying plaintiff will in all
likelihood receive the considerable benefits of the adversary
proceedings contemplated by the Federal Rules”). This differential
treatment cannot in my view be justified by the stated purposes of
the PLRA -- to deter frivolous prisoner litigation and ease the
burden of such suits on the federal courts. The distinction
between immediate dismissal for failure to state a claim and immediate dismissal for frivolousness, if not lost on the average
litigant, surely will not weigh heavily in his or her decision
whether to bring a claim. Easing the small bit of the courts’
burden that is made up of complaints that are not frivolous but
nonetheless fail to state a claim simply cannot be justified when
weighed against the procedural right IFP litigants are denied.
Depriving one group of this right while retaining it for another
stands in stark opposition to established principles of equal 5 access to courts for all litigants, which of course is the original
purpose behind 28 U.S.C. § 1915. See Coppedge v. United States,
369 U.S. 438, 447 (1962) (noting that the purpose of the IFP
statute was “to assure equality of consideration for all
litigants”); cf. Rinaldi v. Yeager, 384 U.S. 305, 310 (1966)
(ruling that judicial mechanisms like appellate review “must be
kept free of unreasoned distinctions that can only impede open and
equal access to the courts”).3
In stating my objections, I recognize that there is no
question that many prisoner suits are baseless. I also agree that
the payment of a filing fee may well deter such suits. We should
proceed with caution, however, in approving additional deterrence
mechanisms that trample prisoner litigants’ rights, for fear we
lose sight of the purpose of prisoner litigation: to protect
prisoners’ constitutional rights, and to curb inhumane treatment
and abuse of power in prison environments. See generally, e.g., Hudson v. McMillian, 503 U.S. 1, 4 (1992) (determining that prison
guards who placed an inmate in handcuffs and shackle and beat him while their supervisor told them “not to have too much fun” used
3 The same problems arise under the newly given right of the court to dismiss claims on the ground of immunity. Under Fed. R. Civ. P. 12(c), the defense of immunity is an affirmative defense, which should be asserted in an adversarial setting. Some courts have required plaintiffs responding to assert specific facts addressing the defense of qualified immunity in a special reply under Rule 7, governing notice pleading. See, e.g., Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc). Often, factual issues need to be resolved to determine whether immunity is justified. Resolution of these issues can only occur in an adversarial setting. Obviously, if the case is patently frivolous on immunity grounds, the court can still dismiss it before service, under § 1915(e)(2)(B)(i).
6 excessive force in violation of the Eighth Amendment); Smith v.
Wade, 461 U.S. 30 (1983) (affirming a punitive damage award against
a prison guard whom a jury found liable for the harassment,
beating, and homosexual rape of a Missouri reformatory inmate);
Hutto v. Finney 437 U.S. 678, 681-83 (1978) (deeming the district
court’s characterization of Arkansas prison conditions as “a dark
and evil world completely alien to the free world” to be “amply
supported by the evidence”). While many prisoner lawsuits are a
burden to the state and to the judicial system, limited overview by
the courts serves as a deterrent to prison authorities who might
otherwise abuse their power, and serves also as a necessary
inducement to them to provide humane conditions to prisoners.4
4 Chief Judge Jon Newman of the Second Circuit has challenged courts with prisoner litigation suits before them to “avoid letting the large number of frivolous complaints and appeals impair their conscientious consideration of the few meritorious cases that are filed.” Hon. Jon O. Newman, Pro Se Prisoner Litigation: Looking for Needles in Haystacks, 62 Brook. L. Rev. 519, 527 (1996). The adversarial process inherent in the standard for dismissal for failure to state a claim is a useful tool in meeting this challenge. See Neitzke, 490 U.S. at 330. Congress has not provided a rational justification for denying the courts this tool and differentiating between indigent and nonindigent litigants.