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  • United States Court of Appeals, Eleventh Circuit.: No. 89-3204 Non-Argument Calendar

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    The court summarizes a case in which two pro se prisoner plaintiffs appealed the district court's sua sponte dismissal of their civil rights complaint after being required to pay a partial filing fee. The appeals court vacated the dismissal order, finding that once a partial fee is paid, the complaint must be filed and summons issued to defendants rather than dismissed as frivolous without their response. The district court is instructed to reinstate the complaint and direct issuance of summons to defendants.

    Original Description:

    Filed: 1990-10-11 Precedential Status: Precedential Citations: 914 F.2d 228 Docket: 89-3204

    Original Title

    Daniel L. Herrick, 110128 and Thomas F. Williams, 095608 v. Gerald Collins, Superintendent, Gene Gordon, Asst. Superintendent, Richard Dugger, 914 F.2d 228, 11th Cir. (1990)

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    The court summarizes a case in which two pro se prisoner plaintiffs appealed the district court's sua sponte dismissal of their civil rights complaint after being required to pay a partial filing fee. The appeals court vacated the dismissal order, finding that once a partial fee is paid, the complaint must be filed and summons issued to defendants rather than dismissed as frivolous without their response. The district court is instructed to reinstate the complaint and direct issuance of summons to defendants.

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    Public Domain
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    31 views4 pages

    United States Court of Appeals, Eleventh Circuit.: No. 89-3204 Non-Argument Calendar

    Uploaded by

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    The court summarizes a case in which two pro se prisoner plaintiffs appealed the district court's sua sponte dismissal of their civil rights complaint after being required to pay a partial filing fee. The appeals court vacated the dismissal order, finding that once a partial fee is paid, the complaint must be filed and summons issued to defendants rather than dismissed as frivolous without their response. The district court is instructed to reinstate the complaint and direct issuance of summons to defendants.

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    of 4

    914 F.

    2d 228
    17 Fed.R.Serv.3d 1267

    Daniel L. HERRICK, # 110128 and Thomas F. Williams, #


    095608, Plaintiffs-Appellants,
    v.
    Gerald COLLINS, Superintendent, Gene Gordon, Asst.
    Superintendent, Richard Dugger, et al.,
    Defendants-Appellees.
    No. 89-3204
    Non-Argument Calendar.

    United States Court of Appeals,


    Eleventh Circuit.
    Oct. 11, 1990.

    Daniel L. Herrick, Punta Gorda, Fla., pro se.


    Thomas F. Williams, Madison, Fla., pro se.
    Robert A. Butterworth, Atty. Gen., Dept. of Legal Affairs, Erin Lydia
    McLaughlin, Asst. Atty. Gen., Tallahassee, Fla., for defendants-appellees.
    Appeal from the United States District Court for the Middle District of
    Florida.
    Before TJOFLAT, Chief Judge, CLARK, Circuit Judge, and TUTTLE* ,
    Senior Circuit Judge.
    PER CURIAM:

    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, prisoners at Florida's Marion Correctional Institution (Marion)


    proceeding pro se, brought an action in the district court under 42 U.S.C. Sec.
    1983 (1988), alleging numerous violations of their constitutional rights. They
    sought to proceed in forma pauperis under 28 U.S.C. Sec. 1915 (1988).1 In
    separate orders, the court required each appellant to pay a partial filing fee
    pursuant to the local rules of the Middle District of Florida. See Rule 4.07(a).
    Both orders stated that the court would determine whether the complaint should
    be dismissed as frivolous, under 28 U.S.C. Sec. 1915(d), only after the partial
    filing fee had been paid. The court also gave appellants leave to file an
    amended complaint.

    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.

    Section 1915 represents a balance between facilitating an indigent person's


    access to the courts and curbing the potentially vast number of suits by such
    persons, who, unlike those who must pay in order to litigate their claims, have
    no economic disincentives to filing frivolous or malicious suits once in forma
    pauperis status is granted. See Neitzke v. Williams, 490 U.S. 319, ----, 109
    S.Ct. 1827, 1832-33, 104 L.Ed.2d 338 (1989). In keeping with this policy, we
    have previously approved the requirement that a litigant with some assets, but
    who is unable to pay the full fee, pay a partial filing fee. See Johnson v. Kemp,
    781 F.2d 1570, 1571 (11th Cir.1986); Collier v. Tatum, 722 F.2d 653, 655-56
    (11th Cir.1983). Until today, however, we have not been presented with the

    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).

    Section 1915(d)'s policy of curbing frivolous or malicious litigation requires no


    different result when a plaintiff proceeding in forma pauperis has paid a partial
    filing fee. That policy is adequately served if the district court, when it initially
    considers the plaintiff's motion to proceed in forma pauperis, makes its
    determination that the complaint is frivolous and dismisses the complaint at
    that time. And if the district court permits the complaint to be filed upon
    payment of a partial fee, the litigant's choice to pay that amount out of his
    limited assets indicates that, at the least, the litigant believes in his claim. We
    therefore adopt the rule articulated by the Seventh Circuit in Bryan: where a
    district court allows the litigant to proceed upon the payment of a partial filing
    fee, the court should treat the complaint "in the same manner as a complaint
    that was not filed in forma pauperis." Bryan, 821 F.2d at 458; see also In re
    Funkhouser, 873 F.2d 1076, 1077 (8th Cir.1989) (following Bryan ).

    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

    28 U.S.C. Sec. 1915 (1988) states in pertinent part:


    (a) Any court of the United States may authorize the commencement,
    prosecution or defense of any suit, action or proceeding, civil or criminal, or
    appeal therein, without prepayment of fees and costs or security therefor, by a
    person who makes affidavit that he is unable to pay such costs or give security
    therefor. Such affidavit shall state the nature of the action, defense or appeal
    and affiant's belief that he is entitled to redress.
    ....
    (d) The court may ... dismiss the case if ... satisfied that the action is frivolous
    or malicious.

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