United States Court of Appeals, Eleventh Circuit.: No. 89-3204 Non-Argument Calendar
United States Court of Appeals, Eleventh Circuit.: No. 89-3204 Non-Argument Calendar
2d 228
17 Fed.R.Serv.3d 1267
I.
Daniel Herrick and Thomas Williams appeal the district court's sua sponte
dismissal of their civil rights complaint as frivolous after the court had required
them to pay a partial filing fee. We vacate the district court's order and remand
with instructions to the district court to issue the summons to the defendants.
Appellants paid the fee and amended their complaint, naming as defendants
Richard Dugger, Secretary of the Florida Department of Corrections, Gerald
Collins, Superintendent of Marion, and numerous other Marion corrections
officers and employees. Appellants sought various forms of relief, including a
declaration that the defendants had violated their constitutional rights,
preliminary and permanent injunctions ordering them transferred to another
institution with a full law library, return of gain-time, damages, and the
establishment of new prison disciplinary procedures.
The defendants did not respond, and the district court issued no summons.
Rather, the court dismissed the complaint sua sponte pursuant to section
1915(d), finding in a detailed twenty-page opinion that appellants' claims were
frivolous. Both Herrick and Williams appeal that dismissal.
II.
5
Appellants argue that the court should have determined whether their complaint
was frivolous before ordering them to pay a partial filing fee and allowing them
to proceed. We agree. We note at the outset that we address only that issue and
express no opinion on the merits of appellants' complaint.
question whether, once the fee has been ordered and paid, the complaint must
be filed and served on the defendants.
7
Federal Rule of Civil Procedure 4(a) states: "Upon the filing of the complaint
the clerk shall forthwith issue a summons and deliver the summons to the
plaintiff or the plaintiff's attorney, who shall be responsible for prompt service
of the summons and a copy of the complaint." A complaint is deemed filed
upon payment of the filing fee. See Franklin v. Oregon, State Welfare Div., 662
F.2d 1337, 1340-41 (9th Cir.1981). Therefore, Rule 4(a) requires that upon the
filing of an ordinary complaint--one not filed in forma pauperis --the summons
must be issued as soon as the filing fee is paid. See id.; Bryan v. Johnson, 821
F.2d 455, 457 (7th Cir.1987).
We hold, accordingly, that when the district court has granted an in forma
pauperis motion and required payment of a partial filing fee, the court must
issue the summons. "This practice will avoid any conflict between section 1915
and Fed.R.Civ.P. 4(a)," Bryan, 821 F.2d at 458 (quoting Wartman v. Branch 7,
Civil Div., County Court, 510 F.2d 130 (7th Cir.1975)), without undermining
section 1915(d)'s policy of curbing frivolous litigation by plaintiffs proceeding
in forma pauperis. In such a case as the one before us today, where the
defendants have not responded, the district court should first permit the
plaintiffs to amend their complaint to overcome its deficiencies, as is their right
under Fed.R.Civ.P. 15(a). If the district court then determines that the
complaint is frivolous and that dismissal under section 1915(d) is warranted,
the district court should dismiss the complaint without requiring plaintiffs to
pay any filing fee.
III.
10
For the foregoing reasons, we vacate the district court's order to dismiss. We
instruct the district court to reinstate the action and to direct the issuance of a
summons on defendants.
11
IT IS SO ORDERED.
See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit