Robert Procup v. C. Strickland

792 F.2d 1069, 1986 U.S. App. LEXIS 26744, 55 U.S.L.W. 2079

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 2, 1986
• Docket: 83-3430
• Status: Published

Opinions

CORRECTED

PER CURIAM:

We took this case en banc to consider the propriety of an injunction restricting Robert Procup, a Florida prisoner, from filing any case with the district court unless submitted by an attorney admitted to practice before the court. Procup v. Strickland, 567 F.Supp. 146 (M.D.Fla. 1983), rev’d, 760 F.2d 1107 (11th Cir.1985), vacated, 760 F.2d 1116 (11th Cir.1985). The proceedings that brought the issue before this Court are set forth fully in those opinions.¹ We hold that the district court’s injunction was overbroad, but that the district court has authority to impose serious restrictions on Procup’s bringing matters before the court without an attorney.

Procup, who is serving a life sentence for murder in the first degree, has engaged in ridiculously extensive litigation in the District Court for the Middle District of Florida, fully set out in the district court’s opinion. 567 F.Supp. at 148-51. As of June 1983, Procup had filed 176 cases in the Jacksonville Division of the Middle District of Florida alone, not counting suits filed in other federal and state courts. Most of Procup’s suits have been pro se, in forma pauperis civil rights actions under 42 U.S.C.A. § 1983. None has reached the stage of trial on the merits; most have been frivolous. Procup often has filed repeated claims and failed to comply with court rules and procedures. His pleadings are long and rambling. He has ignored repeated warnings and admonitions from the district court.

There is no question that Procup’s activities call for some curtailment. The district court injunction against his filing any complaint with the court without the aid of an attorney is an attempt to reduce the number of frivolous lawsuits without foreclosing truly meritorious claims. The injunction was based on the premise that if Procup had an arguably meritorious claim, he would be able to obtain an attorney to handle it for him. The district court noted that because “virtually every action” filed by Procup had been brought pursuant to 42 U.S.C.A. § 1983, the, provision for an attorney’s fees award in 42 U.S.C.A. § 1988 would provide “ample incentive for members of the increasingly large private bar to handle a claim which appears to be meritorious.” 567 F.Supp. at 160. The district court also noted the availability of legal assistance to indigent inmates from Florida Institutional Legal Services, Inc. From these, the district court concluded:

[T]he attorney’s duties under Rule 11, Fed.R.Civ.P. and the Code of Ethics — to file suit only where there are good grounds to support the pleading — will serve as an invaluable preliminary screening mechanism which will shield the Court from Procup’s well-documented proclivity to barrage the Court with frivolous and ill-conceived lawsuits.

... Additionally, the Court will be ensured that'claims brought before it on behalf of Procup have been conscientiously scrutinized before being filed. This has obviously not occurred in the past.

Id. at 161 (footnote omitted).

In this Court’s judgment, however, the requirement that Procup file suits only through an attorney may well foreclose him from filing any suits at all. A private attorney, knowing Procup’s track record, might well be unwilling to devote the time and effort necessary to sift through Procup’s generally frivolous claims to see if there is one of sufficient merit to undertake legal representation. A legitimate claim could well go undiscovered. Moreover, due to Procup’s shotgun litigation techniques, attorneys in the legal services office already have found themselves as defendants in Procup’s rambling pleadings. This not only would deter an attorney from representing such a difficult client, but also raises the possibility that, due to intra-office conflicts of interest, the legal services attorneys would be unavailable to represent Procup. With the premise that Procup would simply be unable to get any attorney to represent him, the injunction then effectively enjoins Procup from filing any suit. The district court neither intended this result nor indicated in any way that such an absolute injunction would be appropriate. An absolute bar against a prisoner filing any suit in federal court would be patently unconstitutional. We, therefore, vacate the injunction and remand for consideration of such modification as will, as much as possible, achieve the desired purposes without encroaching on Procup’s constitutional right to court access.

This does not mean that the district court was incorrect in employing injunctive relief. The district court was fully justified and within its authority in entering injunctive restrictions against Procup. Such action is necessary and prudent to protect the rights of all litigants in the federal system.

Recent years have witnessed an explosion of prisoner litigation in the federal courts. From 218 civil rights petitions of prisoners to federal courts in 1966, there were 18,034 such suits in 1984. Annual Report of the Director of the Administrative Office of the United States Courts for the Twelve Month Period Ended June 30, 1984, at 142-43. According to a 1979 study, 80% to 95% of prisoner filings are brought in forma pauperis. Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv.L.Rev. 610, 617 (1979).

The prisoner litigant may possess several distinct advantages over the ordinary litigant: time to draft multiple and prolonged pleadings; ability to proceed in forma pauperis and thus escape any financial obstacles confronting the usual litigant; and availability of free materials which the state must provide the prisoner, including paper and postage. As a result, there is virtually no cost to a prisoner’s filing repeated, frivolous lawsuits.

In order to more adequately handle this upsurge of cases, the federal courts have adopted various administrative procedures designed to streamline the process. Some of these procedures are found in the in forma pauperis statute itself, 28 U.S.C.A. § 1915. Others have been adopted from recommendations contained in the so-called Aldisert Report. See Federal Judicial Center, Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts (1980). Many courts have developed sophisticated procedures involving the court, staff attorneys, magistrates, law clerks, and judges to try to sort out from the mass of frivolous suits, the meritorious ones.

Occasionally a particularly abusive prisoner, taking advantage of his unique sitúation, will come along with a flood of claims designed to either harass those in positions of authority or to grind the wheels of the judicial system to a halt. No matter how efficient a court’s administrative procedures may be, when one litigant files upwards of a lawsuit a day, the claims of other litigants necessarily suffer. Every lawsuit filed, no matter how frivolous or repetitious, requires the investment of court time, whether the complaint is reviewed initially by a law clerk, a staff attorney, a magistrate, or the judge.

In devising methods to attain the objective of curtailing the activity of such a prisoner, however, courts must carefully observe the fine line between legitimate restraints and an impermissible restriction on a prisoner’s constitutional right of access to the courts. Various courts have employed and approved a variety of injunctive devices.

As to prisoners who bring frequent or repetitious claims, courts have:

—enjoined prisoner litigants from relitigating specific, claims or claims arising from the same set of factual circumstances;²

—required litigants to accompany all future pleadings with affidavits certifying that the claims being raised are novel, subject to contempt for false swearing;³

—directed the litigant to attach to future complaints a list of all cases previously filed 'involving the same, similar, or related cause of action, and to send an extra copy of each pleading filed to the law clerk of the chief judge of the district;⁴ —directed the litigant to seek leave of court before filing pleadings in any new or pending lawsuit; ⁵

—permitted abusive prisoner litigants to file in forma pauperis only claims alleging actual or threatened physical harm; and requiring payment of a filing fee to bring other claims;⁶

—limited the number of filings by a particular inmate; and⁷

—entered injunctions prohibiting the abusive prisoner from acting as a writ writer or jailhouse lawyer for other inmates.⁸

We do not here intend to indicate how this Court would treat any of the above injunctions in a particular case, but cite them as examples of how other courts have handled the problem. Other restrictions which might be considered by a court attempting to deal with the problems created by a litigant such as Procup include:

—limitation of the number of pages to a complaint and other pleadings;

—requiring a plaintiff to file an affidavit setting forth what attempts he has made to obtain an attorney to represent him;

—limitation of further pleadings without order of court, after the complaint has been filed.

This list is intended to be neither exhaustive nor limiting. As new ideas develop and old devices prove ineffective, the judiciary must respond with imaginative new techniques designed to protect the court access of all litigants. See Taylor v. Gibson, 529 F.2d 709, 717 (5th Cir.1976). We make no suggestion as to the combination of restrictions that might be appropriate and do not pass on the constitutionality of any such limitation for a given case. Neither do we suggest the precise form of an injunction. Some procedures, for instance, are directed to the officers of the court rather than the litigants themselves.⁹

There should be little doubt that the district court has the jurisdiction to protect itself against the abuses that litigants like Procup visit upon it. Federal courts have both the inherent power and the constitutional obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions. In re Martin-Trigona, 737 F.2d 1254, 1261-62 (2d Cir.1984), cert. denied, — U.S.-, 106 S.Ct. 807, 88 L.Ed.2d 782 (1986).¹⁰ The fact that Procup’s complaint in this case may have failed to state a justiciable federal claim is of no impact on the court’s power to enter injunctive relief against such a recalcitrant litigant. The court has a responsibility to prevent single litigants from unnecessarily encroaching on the judicial machinery needed by others. Were a frivolous lawsuit a bar to the court’s inherent jurisdiction, the court would be powerless to act upon even a flood of frivolous lawsuits which threatened to bring judicial business to a standstill.

We do not here design the kind of injuction that would be appropriate in this case. Considerable discretion necessarily is reposed in the district court. Procup can be severely restricted as to what he may file and how he must behave in his applications for judicial relief. He just cannot be completely foreclosed from any access to the court. The injunction is vacated and the case is remanded for the district court to consider an appropriate substitute order.

VACATED and REMANDED.

1 . Contrary to Judge Tjoflat’s dissent, the Court construes the district court order as an injunction, effective unless vacated or modified, appealable under 28 U.S.C.A. § 1292(a)(1). Although not named in the injunction, Procup, a party to the suit in which it has been entered, is clearly affected thereby and might possibly be reached by contempt if he sought to file pleadings in violation thereof. Cf. 43A C.J.S. Injunctions § 296 (1978); Waffenschmidt v. MacKay, 763 F.2d 711 (5th Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 794, 88 L.Ed.2d 771 (1986); United States v. Hall, 472 F.2d 261 (5th Cir. 1972). Procup, therefore, has standing to seek review of that injunction. In re Oliver, 682 F.2d 443, 445 (3d Cir.1982) (entertaining an appeal from an almost identical order pursuant to 28 U.S.C.A. § 1292). Injunctions are construed broadly to carry out the intent of the court, which in this case clearly was to prevent Procup from filing further complaints without an attorney. The district court stated in its first sentence that it had entered an "Order to Show Cause, permitting plaintiff thirty days in which to demonstrate why the Court should not enter an injunction prohibiting him from filing any further pleadings in the courts of this district.” 567 F.Supp. at 146-47.

2 . Harrelson v. United States, 613 F.2d 114, 116 (5th Cir.1980) (per curiam); In re Green, 598 F.2d 1126, 1128 (8th Cir. 1979) (era banc); Hill v. Estelle, 423 F.Supp. 690 (S.D.Tex.), aff'd, 543 F.2d 754 (5th Cir.1976); Ex parte Tyler, 70 F.R.D. 456 (E.D.Mo.1976); see also Salahuddin v. Coughlin, 591 F.Supp. 353 (S.D.N.Y.1984) (declining to impose injunction).

3 . Urban v. United Nations, 768 F.2d 1497, 1500 (D.C.Cir.1985) (per curiam) (nonprisoner); Green v. Warden, 699 F.2d 364 (7th Cir.), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983) (prisoner); In re Green, 669 F.2d 779, 787 (D.C.Cir.1981) (per curiam) (prisoner); Demos v. Kincheloe, 563 F.Supp. 30 (E.D.Wash. 1982) (prisoner).

4 . Green v. White, 616 F.2d 1054, 1056 (8th Cir. 1980) (per curiam).

5 . Abdullah v. Gatto, 773 F.2d 487 (2d Cir. 1985) (per curiam); Urban v. United Nations, 768 F.2d 1497, 1500 (D.C.Cir.1985) (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); Green v. Warden, 699 F.2d 364 (7th Cir.), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983); In re Oliver, 682 F.2d 443 (3d Cir. 1982); In re Green, 669 F.2d 779 (D.C.Cir.1981) (per curiam); Pavilonis v. King, 626 F.2d 1075 (1st Cir.), cert. denied, 449 U.S. 829, 101 S.Ct. 96, 66 L.Ed.2d 34 (1980); Gordon v. United States Department of Justice, 558 F.2d 618 (1st Cir.1977) (per curiam); Brown v. Gibson, 571 F.Supp. 1075 (W.D.Mo.1983); Richcreek v. Grecu, 612 F.Supp. 111 (S.D.Ind. 1985); Hanson v. Goodwin, 432 F.Supp. 853 (W.D.Wash.), appeal dismissed, 566 F.2d 1181 (9th Cir.1977); Rudnicki v. McCormack, 210 F.Supp. 905 (D.R.I.1962), appeal dismissed, 372 U.S. 226, 83 S.Ct. 679, 9 L.Ed.2d 714 (1963).

A number of other courts, while not imposing injunctions in the particular case, have recognized the courts’ power to enter this sort of injunction. Sires v. Gabriel, 748 F.2d 49 (1st Cir.1984); 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); Howard v. King, 707 F.2d 215 (5th Cir.1983) (per curiam); Kondrat v. Byron, 587 F.Supp. 994 (N.D.Ohio 1984).

6 . In re Green, No. 81-1186 (5th Cir. Unit A Apr. 27, 1981) (appendix to Green v. Carlson, 649 F.2d 285, 286 (5th Cir. Unit A), cert. denied, 454 U.S. 1087, 102 S.Ct. 646, 70 L.Ed.2d 623 (1981)); Peck v. Hoff, 660 F.2d 371 (8th Cir.1981) (per curiam); Green v. White, 616 F.2d 1054 (8th Cir.1980) (per curiam).

Several courts have held that a total ban on all IFP filings by a particular litigant as a sanetion for abuse is impermissible. Abdullah v. Gatto, 773 F.2d 487 (2d Cir.1985) (per curiam); Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984); 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); In re Green, 669 F.2d 779, 786 (D.C.Cir.1981) (per curiam).

7 . See Franklin v. Oregon, 563 F.Supp. 1310 (D.Or.1983) (limiting the prisoner to six IFP filings per year). The Ninth Circuit approved the injunction, but with a qualification: "If a request is made for the filing of additional cases beyond the number prescribed by the court, Franklin must be afforded an opportunity to make a showing that the limitation to six filings is prejudicial because inclusion of these claims by amendment of his existing claims is not possible. If such a showing is made, the district court must amend its order. This will avoid the constitutionally questionable conclusive presumption that all of Franklin’s subsequent submissions are frivolous or malicious.” Franklin v. Murphy, 745 F.2d 1221, 1232 (9th Cir.1984). In addition, for any filings beyond the initial six, Franklin would be required to seek leave of court, certifying that the claims he wished to present were new claims never before raised and disposed of on the merits by a federal court. Upon failure to certify or false certification, Franklin would be subject to contempt proceedings. Id. (quoting In re Green, 669 F.2d 779, 787 (D.C.Cir.1981) (per curiam)).

8 . Hanson v. Goodwin, 432 F.Supp. 853 (W.D. Wash.), appeal dismissed, 566 F.2d 1181 (9th Cir. 1977); Green v. Wyrick, 428 F.Supp. 732 (W.D.Mo.1976), aff’d sub nom. In re Green, 586 F.2d 1247, 1251 (8th Cir.1978), cert. denied, 440 U.S. 922, 99 S.Ct. 1249, 59 L.Ed.2d 475 (1979).

9 . This Court, in a previous case, has instructed its clerk not to file pleadings that do not strictly comply with applicable rules of procedure. Carter v. Pettigrew, No. 84-8411 (11th Cir. Aug. 24, 1984) (unpublished order) (order authorizing clerk of court to inspect documents received from certain litigants for compliance with Fed. R.App.P. 3 and to refuse to file documents if the judgment or order appealed from is not specified). Another court has ordered a United States Magistrate to screen all future filings to determine whether the filing was in furtherance of a bad faith effort to deluge the courts. Green v. Camper, 477 F.Supp. 758 (W.D.Mo.1979).

10 . See also In re Green, No. 81-1186 (5th Cir. Unit A Apr. 27, 1981) (appendix to Green v. Carlson, 649 F.2d 285, 287 (5th Cir. Unit A), cert. denied. 454 U.S. 1087, 102 S.Ct. 646, 70 L.Ed.2d 623 (1981)) (court’s general supervisory power to control its docket); Harrelson v. United States, 613 F.2d 114, 116 (5th Cir.1980) (per curiam) (All Writs Act, 28 U.S.C.A. § 1651(a)).