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Deutsch v. United States, 95-1291 (1995)

Court: Court of Appeals for the Third Circuit Number: 95-1291 Visitors: 21
Filed: Oct. 12, 1995
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 10-12-1995 Deutsch v United States Precedential or Non-Precedential: Docket 95-1291 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Deutsch v United States" (1995). 1995 Decisions. Paper 265. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/265 This decision is brought to you for free and open access by the Opinions of the United States
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                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-12-1995

Deutsch v United States
Precedential or Non-Precedential:

Docket 95-1291




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation
"Deutsch v United States" (1995). 1995 Decisions. Paper 265.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/265


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                          No. 95-1291


                       MELVIN P. DEUTSCH,
                                      Appellant

                                 V.

                    UNITED STATES OF AMERICA


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                    (D.C. Civil No. 95-01728)


           Submitted Under Third Circuit LAR 34.1(a)
                         August 9, 1995

     Before:   GREENBERG, NYGAARD and LEWIS, Circuit Judges

               (Opinion Filed    October 12, l995 )


MELVIN P. DEUTSCH, PRO SE
#97217-024
Metropolitan Correction Center
150 Park Row
New York, NY 10007
Appellant, Pro Se

JOHN N. JOSEPH, ESQUIRE
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pa 19106
Attorney for Appellee



                      OPINION OF THE COURT




                                 1
2
NYGAARD, Circuit Judge.

           Melvin P. Deutsch appeals from an order that dismissed

his in forma pauperis complaint as "frivolous or malicious"

within the meaning of 28 U.S.C. § 1915(d) (1988); the district

court determined that the relief Deutsch sought was a "trifle"

and thus not worthy of adjudication.   We will affirm, but for

reasons other than those offered by the district court.    We hold

that a court may dismiss an in forma pauperis claim as frivolous

if, after considering the contending equities, the court

determines that the claim is: (1) of little or no weight, value,

or importance; (2) not worthy of serious attention; or (3)

trivial.

                                I.

           Deutsch filed a motion to proceed in forma pauperis and

a complaint, alleging that prison guards took his writing pens

and never returned them.   Deutsch also alleged that he had filed

a tort claim with the federal government in September 1994, but

that the government declined to offer a settlement because it

found no evidence that his pens had been taken.    Deutsch then

filed this action, which the district court properly construed as

a claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),

2671-2680 (1988).   Deutsch requested $4.20 for his pens, plus

litigation costs, attorney's fees, and interest.

           The district court granted Deutsch leave to proceed in
forma pauperis but dismissed the complaint under § 1915(d).       The

district court determined that the $120 filing fee paid by every

non-indigent plaintiff has the practical effect of precluding


                                3
insubstantial claims seeking solely monetary damages.     It

concluded that the in forma pauperis legislation was not intended

to encourage indigent plaintiffs to assert claims that a non-

indigent plaintiff would not.    The district court was unable to

conclude that the case was legally or factually frivolous, or

that it was brought for a malicious purpose, but instead

determined that under the doctrine of de minimis non curat lex,0

plaintiff's claim, which is limited solely to monetary damages in

the amount of $4.20, was encompassed by the phrase `frivolous or

malicious' as used in § 1915(d).      Accordingly, it dismissed the

complaint.

          Deutsch filed a notice of appeal and a motion for leave

to appeal in forma pauperis.    We notified the parties that we

would consider summary action pursuant to Internal Operating

Procedure 10.6.   Deutsch did file a summary action response.     We

will consider this appeal on the district court record and the

United States Attorney's response.0


0
  "The law does not care for, or take notice of, very small or
trifling matters. The law does not concern itself about
trifles." BLACK'S LAW DICTIONARY 431 (6th ed. 1990).
0
  The U.S. Attorney's Office responded to our notification that
we would take summary action on this appeal by directing our
attention to United States v. Bradley, 
892 F.2d 634
(7th Cir.),
cert. denied, 
495 U.S. 909
, 
110 S. Ct. 1935
, 
109 L. Ed. 2d 298
(1990). We will take notice of the Bradley opinion because, in
that case, Deutsch lied to a district court, claiming that he was
an attorney and that he should be permitted to enter an
appearance as trial counsel for a criminal defendant. Deutsch is
not, and never has been, an attorney. After considering the
situation, the court of appeals felt compelled to issue a
warning: "Deutsch is a con man, a fraud, a phony, a humbug, a
mountebank--in short, an impostor. . . . Judges should be on the
lookout for Mr. Deutsch, whose persistence suggests that he may


                                  4
                                 II.

          (a) Jurisdiction

          We have held that an order dismissing a complaint

without prejudice is not final under § 1291, and thus not

appealable.   Borelli v. City of Reading, 
532 F.2d 950
, 951 (3d

Cir. 1976) (per curiam).     In Borelli, we recognized that an

exception to this jurisdictional rule exists if the plaintiff

either cannot cure the defect that led to dismissal or elects to

stand on the dismissed complaint.      
Id. at 951-52.
          Here, the district court failed to specify whether the

§ 1915(d) dismissal was with or without prejudice, and there is

no indication in the opinion accompanying the dismissal order

that the court expected Deutsch to file a curative complaint.

Although the filing of a paid complaint has not been prejudiced,

we will review the order appealed pursuant to § 1291.     The

district court's order is in essence final, because an in forma

pauperis plaintiff must be afforded appellate review of a

determination that he is required to pay all or a portion of the

court costs and filing fees to file a claim, either because he

does not qualify for in forma pauperis status or because his
complaint is frivolous.    See Roberts v. United States Dist.

Court, 
339 U.S. 844
, 845, 
90 S. Ct. 954
, 
94 L. Ed. 2d 1326
(1950)

(per curiam) (order denying leave to proceed in forma pauperis is

final, collateral order that is appealable under § 1291); see

also Sinwell v. Shapp, 
536 F.2d 15
, 16 (3d Cir. 1976).

have other marks in sight." 
Id. at 634-35;
see also United
States v. Ziegenhagen, 
890 F.2d 937
, 939 n.7 (7th Cir. 1989).


                                  5
           Alternatively, if the plaintiff has expressed an intent

to stand on the dismissed complaint, or if it appears that the

plaintiff could do nothing to cure the complaint's defects, then

the order is likewise appealable under § 1291.    Riley v. Simmons,

45 F.3d 764
, 770 (3d Cir. 1995); Presbytery of N.J. Orthodox

Presbyterian Church v. Florio, 
40 F.3d 1454
, 1461-62 n.6 (3d Cir.

1994).   Here, it appears that Deutsch could not cure the defect

that led to dismissal because the relief he sought was determined

to be too small an amount to survive § 1915(d) scrutiny.

Accordingly, we conclude the order is appealable under § 1291.

           (b) Standard of Review

           We apply a deferential abuse of discretion standard

when reviewing a district court's decision to dismiss an in forma

pauperis complaint under § 1915(d).   Denton v. Hernandez, 
504 U.S. 25
, 33, 
112 S. Ct. 1728
, 
118 L. Ed. 2d 340
(1992).   However,

even within this narrow scope of review, to the extent that the

district court, in the course of its frivolousness determination,

engaged in the choice, application, and interpretation of legal

precepts, our review is plenary.    See Louis W. Epstein Family
Partnership v. Kmart Corp., 
13 F.3d 762
, 766 (3d Cir. 1994)

(citing Universal Minerals, Inc. v. C.A. Hughes & Co., 
669 F.2d 98
, 102 (3d Cir. 1981)).

                               III.

           The district court relied on the maxim de minimis non

curat lex and concluded that Deutsch's complaint was "frivolous

or malicious" within the meaning of § 1915(d).   The Supreme Court

has recognized that "the venerable maxim de minimis non curat lex


                                6
. . . is part of the established background of legal principles

against which all enactments are adopted, and which all

enactments (absent contrary indication) are deemed to accept."

Wisconsin Dep't of Revenue v. Wrigley, 
505 U.S. 214
, 231, 112 S.

Ct. 2447, 
120 L. Ed. 2d 174
(1992).      Given the importance of the

maxim de minimis non curat lex in American jurisprudence, it is

clear that the district court's reliance on that maxim was well-

intended.    We conclude, nonetheless, that the plain meaning of

the term "frivolous" authorizes the dismissal of in forma

pauperis claims that, like Deutsch's, are of little or no weight,

value, or importance, not worthy of serious consideration, or

trivial.    A dismissal based upon the maxim de minimis non curat

lex would encompass claims beyond the parameters of § 1915(d),

and is unnecessary to the determination that Deutsch's complaint

should be dismissed.    We will affirm on the narrower ground that

the complaint was frivolous within the meaning of § 1915(d).0

            The in forma pauperis statute, 28 U.S.C. § 1915, "is

designed to ensure that indigent litigants have meaningful access

to the federal courts."    Neitzke v. Williams, 
490 U.S. 319
, 324,

109 S. Ct. 1827
, 
104 L. Ed. 2d 338
(1989) (emphasis added) (citing

Adkins v. E.I. DuPont de Nemours & Co., 
335 U.S. 331
, 342-43, 
69 S. Ct. 85
, 
93 L. Ed. 43
(1948)).       Specifically, Congress enacted

the in forma pauperis statute to ensure that administrative court

costs and filing fees, both of which must be paid by everyone


0
  Because our discussion is confined to the "frivolous" standard,
we need not decide whether Deutsch's complaint was also
"malicious" within the meaning of § 1915(d).


                                  7
else who files a lawsuit, would not prevent indigent persons from

pursuing meaningful litigation.       
Denton, 504 U.S. at 31
; Jones v.

Zimmerman, 
752 F.2d 76
, 78-79 (3d Cir. 1985).      To that end,

§1915(a) provides, in pertinent part:
          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.


See also Coppedge v. United States, 
369 U.S. 438
, 441, 
82 S. Ct. 917
, 
8 L. Ed. 2d 21
(1962).

          Congress was also concerned, however, that indigent

persons could abuse this cost-free access to the federal courts.

Denton, 504 U.S. at 31
; 
Neitzke, 490 U.S. at 324
.      ("When

Congress opened the door to in forma pauperis petitions, it was

concerned that the removal of the cost barrier might result in a

tidalwave [sic] of frivolous or malicious motions filed by

persons who gave no pause before crossing the threshold of the

courthouse door.").   McTeague v. Sosnowski, 
617 F.2d 1016
, 1019

(3d Cir. 1980).   Thus, Congress sought to empower the courts to

dismiss the abusive filings0 that could result from the absence

of a cost barrier by including § 1915(d), which authorizes a

court to dismiss an in forma pauperis complaint "if satisfied



0
  We note parenthetically that Melvin Deutsch has filed 20 civil
actions since 1992. Nevertheless, given the basis on which we
are affirming the district court's order, we need not decide
whether he has abused his right of access to the courts by
repeated, frivolous filings.

                                  8
that the action is frivolous or malicious."   See 
Denton, 504 U.S. at 31
.

          As the in forma pauperis legislation, which was first

enacted in 1892, begins its second century, it is clear that

Congress' use of the term "frivolous" in § 1915(d) has left the

federal courts with an imprecise standard for determining whether

an in forma pauperis complaint abuses the federal legal system.

Indeed, the Supreme Court has found that
          the brevity of § 1915(d) and the generality of its
          terms have left the judiciary with the not
          inconsiderable task of fashioning the procedures by
          which the statute operates and of giving content to
          §1915(d)'s indefinite adjectives. Articulating the
          proper contours of the § 1915(d) term `frivolous,'
          which neither the statute nor the accompanying
          congressional report defines, presents one such task.


Neitzke, 490 U.S. at 324
-35 (footnote omitted).   Like the other

courts of appeals, we have established procedures by which § 1915

is to operate.0   Here, we must consider the contours of

0
  In this Circuit, leave to proceed in forma pauperis is based on
a showing of indigence. Roman v. Jeffes, 
904 F.2d 192
, 194 n.1
(3d Cir. 1990). We review the affiant's financial statement,
and, if convinced that he or she is unable to pay the court costs
and filing fees, the court will grant leave to proceed in forma
pauperis. 
Id. Thereafter, the
court considers whether the
complaint is "frivolous or malicious" within the meaning of §
1915(d). 
Id. We also
recognize that "extreme circumstances"
might justify denying an otherwise qualified affiant leave to
proceed in forma pauperis. Lockhart v. D'Urso, 
408 F.2d 354
, 355
(3d Cir. 1969) (per curiam). Although we have not delineated the
circumstances that might be sufficiently "extreme" to justify
denial, we remain open to the possibility that an affiant may
someday warrant invocation of this exception to the usual
procedure. Cf. In re Sindram, 
498 U.S. 177
, 180, 
111 S. Ct. 596
,
112 L. Ed. 2d 599
(1991) (per curiam) (barring abusive petitioner
from in forma pauperis status when seeking extraordinary writs
and stating that "the Court has a duty to deny in forma pauperis
status to those individuals who have abused the system.").


                                 9
§1915(d)'s frivolous standard to address whether the court is

authorized to dismiss an in forma pauperis claim if it determines

that the controversy under the claim is trifling.

          Preliminarily, we note that the Supreme Court has

already defined some contours for the frivolous standard.     For

example, a claim based on an indisputably meritless legal theory

may be dismissed as frivolous under § 1915(d).   
Neitzke, 490 U.S. at 327
; Roman v. Jeffes, 
904 F.2d 192
, 194 (3d Cir. 1990).

Accordingly, we held in Abdul-Akbar v. Watson, 
901 F.2d 329
, 334-

35 (3d Cir.), cert. denied, 
498 U.S. 806
, 
111 S. Ct. 237
, 
112 L. Ed. 2d 196
(1990), that a prisoner's in forma pauperis complaint

alleging that prison officials had violated his right of access

to the courts was not legally frivolous because the district

court could not conclude that the allegations turned on an

indisputably meritless legal theory.   Section 1915(d) also

authorizes the dismissal of a complaint as factually frivolous if

a court determines that the contentions are clearly baseless.

Neitzke, 490 U.S. at 325
, 328.   In Denton, the Supreme Court held

that "a finding of factual frivolousness is appropriate when the

facts alleged rise to the level of the wholly irrational or the

wholly incredible, whether or not there are judicially noticeable

facts available to contradict 
them." 504 U.S. at 33
.

          The Supreme Court has only begun, with Neitzke and
Denton, to define § 1915(d)'s frivolous standard.   See Adams v.

Rice, 
40 F.3d 72
, 74 (4th Cir. 1994) ("[T]he term `frivolous' []

connotes discretion because, as a practical matter, it is simply

not susceptible to categorical definition.   Although the Supreme


                                 10
Court has loosely defined frivolous claims, . . . it has declined

to fashion too precise a rule."); White v. White, 
886 F.2d 721
,

724 (4th Cir. 1989).   More specifically, Neitzke and Denton do

not preempt us from considering whether § 1915(d)'s use of the

term "frivolous" includes trivial claims, because neither opinion

places the contours of the frivolous standard beyond the purview

of further judicial inquiry.

          "Where, as here, the resolution of a question of

federal law turns on a statute and the intention of Congress, we

look first to the statutory language and then to the legislative

history if the statutory language is unclear."   See Toibb v.

Radloff, 
501 U.S. 157
, 162, 
111 S. Ct. 2197
, 2199, 
115 L. Ed. 2d 145
(1991).   Accordingly, we turn to the issue on appeal, which

requires that we look to both the language of § 1915(d) and the

congressional intent underlying its enactment.    Blum v. Stenson,

465 U.S. 886
, 896, 
104 S. Ct. 1541
, 1548, 
79 L. Ed. 2d 891
(1984).

We recognize that, as an interpreting court, we must begin with

the "assumption that the ordinary meaning of that language

accurately expresses the legislative purpose."   FMC Corp. v.
Holliday, 
498 U.S. 52
, 57, 
111 S. Ct. 403
, 407, 
112 L. Ed. 2d 356
(1990) (quoting Park `N Fly, Inc. v. Dollar Park & Fly, Inc., 
469 U.S. 189
, 194, 
105 S. Ct. 658
, 661, 
83 L. Ed. 2d 582
(1985)).

          The Supreme Court has determined that the meaning of

"frivolous" in § 1915(d) is "indefinite."   
Neitzke, 490 U.S. at 325
("neither the statute nor the accompanying congressional

reports [define frivolous]"); see H.R. Rep. No. 1079, 52d Cong.,
1st Sess. (1892); see also Mallard v. United States Dist. Court,


                                11

490 U.S. 296
, 302, 
109 S. Ct. 1814
, 
104 L. Ed. 2d 318
(1989)

(referring to the Report of the House Judiciary Committee as

generally "unilluminating").     When a term is defined neither by

the statutory text nor its legislative history, we must construe

it in accordance with its ordinary and natural, or plain,

meaning.   See Director, Office of Workers' Comp. Programs, Dep't

of Labor v. Greenwich Collieries, ___ U.S. ____, 
114 S. Ct. 2251
,

2255, 
129 L. Ed. 2d 221
(1994) (citing Smith v. United States, 508

U.S. ____, 
113 S. Ct. 2050
, 2055, 
124 L. Ed. 2d 138
(1993).             Thus,

in determining whether the Congress used "frivolous" to authorize

the dismissal of trifling or trivial claims, we must look to the

plain meaning of "frivolous," consonant, of course, with the

general legislative purposes served by the in forma pauperis

statute.   See 
Mallard, 490 U.S. at 300-02
.

           "Frivolous" means "of little or no weight, value, or

importance; paltry; trumpery; not worthy of serious attention;

having no reasonable ground or purpose."       The meaning of

"frivolous" was the same in the 1890s, when the in forma pauperis

statute was first enacted, as it is today.       THE OXFORD ENGLISH

DICTIONARY 556 (1987); see also THE AMERICAN HERITAGE DICTIONARY 535 (2d
ed. 1982) ("(1) unworthy of serious attention; trivial; (2)

inappropriately silly"); THE NEW CENTURY DICTIONARY 618 (D. Appleton-

Century Co. 1927) ("of little or no weight, worth, or importance;

paltry or trivial; not worthy of serious notice; characterized by

lack of seriousness or sense; given to trifling or levity.").

Commonly used synonyms for frivolous include "impractical,"

"insignificant," "minor," and "trivial."       The plain meaning of


                                   12
"frivolous" indicates that Congress intended §1915(d) to

authorize a court to dismiss a complaint when it determines that

the action is, inter alia, "of little or no weight, value, or

importance," "not worthy of serious attention," or "trivial."

            In Neitzke, the Supreme Court began the task of

defining the frivolous standard by looking to its definition of a

legally frivolous appeal set forth in cases not dealing with

applications of § 1915(d).0    In Denton, the Supreme Court again

looked to the legal sense of "frivolous" when it refined the

standard that governs the dismissal of factually frivolous

claims.    
See 504 U.S. at 32-33
.    Significantly, because there is

no indication in the statute or the legislative history that

"frivolous" was used in § 1915(d) in a legal sense only--thus

excluding from consideration the term's other meanings in common

usage--we must presume that Congress did not intend to define

0
    The Court stated in Neitzke that

            [t]he Courts of Appeals have, quite correctly in our
            view, generally adopted as formulae for evaluating
            frivolousness under § 1915(d) close variants of the
            definition of legal frivolousness which we articulated
            in the Sixth Amendment case of Anders v. California,
            
386 U.S. 738
[, 
87 S. Ct. 1396
, 
18 L. Ed. 2d 493
] (1967).
            There, we stated that an appeal on a matter of law is
            frivolous where `[none] of the legal points [are]
            arguable on their 
merits.' 490 U.S. at 325
. We think it would be unwise to construe this
ambiguous statement, albeit one proffered by the Supreme Court,
as indicative of an intent to limit the Courts of Appeals to
these variants of the Neitzke question: i.e., "whether a
complaint that fails to state a claim under [Fed. R. Civ. P.]
12(b)(6) is necessarily frivolous within the meaning of
§1915(d)." 490 U.S. at 324
. We do not infer that the Court
would deem unacceptable those formulae developed for evaluating
frivolousness in other contexts.


                                    13
"frivolous" in a manner that would immure the concept it defines

from the remainder of the it's plain meaning.   See Connecticut

Nat'l Bank v. Germain, 
503 U.S. 249
, 253-54, 
112 S. Ct. 1146
, 
117 L. Ed. 2d 391
(1992) ("[C]ourts must presume that a legislature

says in a statute what it means and means in a statute what it

says there."); United States v. Ron Pair Enterprises Inc., 
489 U.S. 235
, 241-42, 
109 S. Ct. 1026
, 
103 L. Ed. 2d 290
(1989).

          Looking to the context in which "frivolous" is used in

§ 1915(d), we find further support for viewing the term with a

broad sense of its plain meaning.    See Reno v. Koray, ___ U.S.

____, 
115 S. Ct. 2021
, 2025, 
132 L. Ed. 2d 46
(1995) (drawing

meaning of a word from the context in which it is used.);

Ardestani v. Immigration & Naturalization Serv., 
502 U.S. 129
,

135, 
112 S. Ct. 515
, 519, 
116 L. Ed. 2d 496
(1991); Hudson United

Bank v. Chase Manhattan Bank, 
43 F.3d 843
, 848 n.11 (3d Cir.

1994).   Section 1915(d) is phrased so that a finding that an

action is frivolous is conjoined as an alternative to a finding

that an action is malicious.   A court that considers whether an

action is malicious   must, in accordance with the definition of

the term "malicious," engage in a subjective inquiry into the

litigant's motivations at the time of the filing of the lawsuit

to determine whether the action is an attempt to vex, injure or

harass the defendants.

           The frivolous standard, by contrast, as the Supreme

Court impliedly recognized in Neitzke and Denton, requires that a
court also assess an in forma pauperis complaint from an
objective standpoint in order to determine whether the claim is


                                14
based on an indisputably meritless legal theory or clearly

baseless factual contention.     See 
Denton, 504 U.S. at 34
;

Neitzke, 490 U.S. at 327
.   We presume that, in accordance with

Congress's intent to empower the courts with broad discretion to

dismiss the abusive filings that would result from the absence of

a cost barrier (see 
Denton, 504 U.S. at 33
), the conjunction of

the objective "frivolous" standard as an alternative to the

subjective "malicious" standard indicates Congress's desire to

grant the judiciary a sufficient scope of power to maintain

meaningful control over the filing of in forma pauperis

complaints.

           In accordance with this broad grant of authority,

Congress presumably intended the courts to consider the plain

meaning of "frivolous" when analyzing a claim, because a crabbed

or contrived interpretation would not serve a court when it

evaluates whether an in forma pauperis complaint abuses the legal

system.   Indeed, by way of negative inference, we know that

Congress did not express concern that one could abuse the legal

system only by filing legally frivolous claims; rather, Congress

was concerned that there would be many varieties of abuse

resulting from the absence of a cost barrier.    Thus, we conclude

that under § 1915(d), a court may also properly focus on whether

the action is frivolous in the sense that it is: (1) of little or

no weight, value, or importance; (2) not worthy of serious

consideration; or (3) trivial.

           This interpretation of § 1915(d)'s frivolous standard

is consistent with the goals of the in forma pauperis


                                  15
legislation, and we are confident that giving effect to the

entire plain meaning of "frivolous" will not produce "a result

demonstrably at odds with the intention of the drafters." Griffin

v. Oceanic Contractors, Inc., 
458 U.S. 564
, 571, 
102 S. Ct. 3245
,

3230, 
73 L. Ed. 2d 973
(1982).    Indeed, in our view it would be

anomalous to conclude that the in forma pauperis legislation,

while seeking to "assure equality of consideration for all

litigants[,]" Coppedge v. United 
States, 369 U.S. at 447
, would

also seek to encourage an indigent litigant such as appellant to

pursue suit upon a trivial claim that a paying litigant would not

file, because common sense and the practical effect of having to

pay $120 in filing fees to recover $4.20 would in effect preclude

the suit.    Thus, a plain-meaning interpretation of "frivolous"

serves the drafters' intentions quite well:    § 1915(d) authorizes

a district court to dismiss trivial claims brought to the courts

simply because, upon the grant of in forma pauperis status, there

is no longer the ordinary economic disincentive to doing so.      See

Neitzke, 490 U.S. at 327
.

            At the time § 1915 was enacted, Congress recognized

that "a litigant whose filing fees and court costs are assumed by

the public, unlike a paying litigant, lacks an economic incentive

to refrain from filing frivolous, malicious, or repetitive

lawsuits."   
Denton, 504 U.S. at 31
(internal quotation marks
omitted) (quoting 
Neitzke, 490 U.S. at 324
).    In recent years,

however, it has become clear that the absence of a cost barrier

is, as Congress feared it would be, the primary reason indigent

litigants do not refrain from filing frivolous lawsuits.     See,


                                 16
e.g., Zatko v. California, 
502 U.S. 16
, 16-17, 
112 S. Ct. 355
,

116 L. Ed. 2d 293
(1991) (per curiam) ("[I]n forma pauperis

petitioners lack the financial disincentives--filing fees and

attorney's fees--that help to deter other litigants from filing

frivolous petitions[.]"); In re Amendment to Rule 39, 
500 U.S. 13
, 14, 
111 S. Ct. 1572
, 
114 L. Ed. 2d 15
(1991) (per curiam)

(noting lack of economic disincentives and amending Supreme Court

Rule 39 so that the Court can deny in forma pauperis status to

those who submit "frivolous or malicious" filings); Lumbert v.

Illinois Dep't of Corrections, 
827 F.2d 257
, 259 (7th Cir. 1987);

Phillips v. Mashburn, 
746 F.2d 782
, 784-85 (11th Cir. 1984);

Franklin v. Murphy, 
745 F.2d 1221
, 1226 (9th Cir. 1984); Anderson

v. Coughlin, 
700 F.2d 37
, 42-43 (2d Cir. 1983).   Although § 1915

was enacted to remove the cost barrier that kept indigent persons

from the federal courts, Congress did not intend that the courts

ignore, particularly when applying § 1915(d), Congress' concern

that absence of an economic disincentive could lead to litigation

that abuses the system.

          The Supreme Court has determined that § 1915(d) "is

designed largely to discourage the filing of, and waste of

judicial and private resources upon, baseless lawsuits that

paying litigants generally do not initiate because of the costs

of bringing suit[.]"   
Neitzke, 490 U.S. at 327
; see Roman v.
Jeffes, 
904 F.2d 192
, 195 n.3 (3d Cir. 1990); Adams v. Rice, 
40 F.3d 72
, 74 (4th Cir. 1994) ("Congress enacted § 1915(d) in order

to prevent abuse of the judicial system by parties who bear none

of the ordinary financial disincentives to filing meritless


                                17
claims."); White v. White, 
886 F.2d 721
, 724 (4th Cir. 1989)

("[Section] 1915(d) seeks to forestall frivolous pro se lawsuits

that would not be brought by paying litigants.").    In essence,

§1915(d) represents Congress's attempt to codify its awareness

that paying litigants, unlike indigent litigants, consider the

economic feasibilities of suing before filing a lawsuit.    When

one must pay the expenses of pursuing litigation, one will first

consider whether the costs of suing will be greater than the

benefits to be gained.     See 
Lumbert, 827 F.2d at 259
; Evans v.

Croom, 
650 F.2d 521
, 524 (4th Cir. 1981), cert. denied, 
454 U.S. 1153
, 
102 S. Ct. 1023
, 
71 L. Ed. 2d 309
(1982).     If it seems that

the cost/recovery differential will be too great, the reasonable

paying litigant will be dissuaded from filing.     
Neitzke, 490 U.S. at 328
.0

           The absence of an economic disincentive has developed

into a major concern for the federal courts since the explosion

of in forma pauperis prisoner litigation began almost thirty

years ago.    We have been, and remain, cognizant that "the cost in

0
  In Neitzke, the Supreme Court distinguished § 1915(d)'s
standard for dismissal from that of Fed. R. Civ. P. 12(b)(6),
finding that

             [t]his conclusion follows naturally from § 1915(d)'s
             role of replicating the function of screening out
             inarguable claims which is played in the realm of paid
             cases by financial considerations. The cost of
             bringing suit and the fear of financial sanctions
             doubtlessly deter most inarguable paid claims, but such
             deterrence presumably screens out far less frequently
             those arguably meritorious legal theories whose
             ultimate failure is not quite apparent at the 
outset. 490 U.S. at 328
.


                                  18
time and personnel to process pro se and in forma pauperis

pleadings requires some portion of the court's limited resources

and ties up these limited resources to the detriment of other

litigants."   Abdul-Akbar v. 
Watson, 901 F.2d at 332
; see also In

re McDonald, 
489 U.S. 180
, 184, 
109 S. Ct. 993
, 
103 L. Ed. 2d 158
(1989) (per curiam) ("Every paper filed with the Clerk of this

Court, no matter how repetitious or frivolous, requires some

portion of the institution's limited resources.").0   Of course,

both paying litigants and in forma pauperis litigants with

meaningful claims continue to suffer from the drain on human and

economic resources that results from meritless suits.   ("[There

are] problems in judicial administration caused by the surfeit of

meritless in forma pauperis complaints in the federal courts, not

the least of which is the possibility that meritorious complaints

will receive inadequate attention or be difficult to identify


0
  The Supreme Court has begun to bar abusive petitioners from
receiving in forma pauperis status. See, e.g., In re Whitaker,
___ U.S. ____, 
115 S. Ct. 2
, 
130 L. Ed. 2d 1
(1994) (per curiam)
(barring abusive petitioner from proceeding in forma pauperis
when seeking extraordinary relief); In re Anderson, 511 U.S.
____, 
114 S. Ct. 1606
, 
128 L. Ed. 2d 332
(1994) (per curiam)
(same); In re Sassower, ___ U.S. ____, 
114 S. Ct. 2
, 
126 L. Ed. 2d 6
(1993) (per curiam) (barring abusive petitioner from proceeding
in forma pauperis in non-criminal matters when seeking
extraordinary relief and certiorari review); Martin v. District
of Columbia Court of Appeals, ___ U.S. ____, 
113 S. Ct. 397
, 397,
121 L. Ed. 2d 305
(1992) (per curiam) (barring abusive petitioner
from receiving in forma pauperis status to file petitions for
writs of certiorari); Zatko v. 
California, 502 U.S. at 18
(denying in forma pauperis status to two abusive petitioners); In
re Demos, 
500 U.S. 16
, 
111 S. Ct. 1569
, 
114 L. Ed. 2d 20
(1991)
(per curiam) (barring abusive petitioner from proceeding in forma
pauperis when seeking extraordinary relief); In re Sindram, 
498 U.S. 177
, 179-80, 
111 S. Ct. 596
, 
112 L. Ed. 2d 599
(1991) (per
curiam) (same).


                                19
amidst the overwhelming number of meritless complaints.").

Neitzke, 490 U.S. at 326
.   Free v. United States, 
879 F.2d 1535
,

1536 (7th Cir. 1989) ("Litigation in federal court is not a free

good, and litigation by prisoners places heavy burdens not only

on the courts themselves but on other litigants, whose cases are

shoved further back in the queue."); Savage v. Central

Intelligence Agency, 
826 F.2d 561
, 564 (7th Cir. 1987) ("Not even

the cause of prisoners' rights is helped by the flood of trivial

suits that distracts judicial attention from the occasional

meritorious one."); Raymon v. Alvord Indep. School Dist., 
639 F.2d 257
, 258 (5th Cir. Unit A Mar. 1981) ("Each litigant who

improperly seeks federal judicial relief for a petty claim forces

other litigants with more serious claims to await a day in

court.").   The legislation does contemplate providing access to

indigent persons, but "cost-free" is a misnomer, because the

taxpayers must pay to support the system, both with money and in

the sense that they receive diminished services from the courts.

See 
Free, 879 F.2d at 1539
(Coffey, J., concurring).

            In Adkins v. E.I. Dupont de Nemours & Co., 
335 U.S. 331
, 
69 S. Ct. 85
, 
93 L. Ed. 43
(1948), the Supreme Court

interpreted several provisions of the in forma pauperis statute.
In the Court's unanimous opinion, the most important

consideration for the Court in analyzing § 1915 was the financial

impact that those seeking the benefits of the in forma pauperis

statute would have on the financial interests of the taxpaying

public.   For example, in the context of an indigent appellant's

request to have superfluous matters printed for inclusion in the


                                 20
record on appeal, the Court stated that "[w]e do not think that

the court was without power to protect the public from having to

pay heavy costs incident to the inclusion of `wholly unnecessary'

matters in an in forma pauperis appeal."    
Id. at 337.
Furthermore, the Court added:
          We know of few more appropriate occasions for use of a
          court's discretion than one in which a litigant, asking
          that the public pay costs of his litigation, either
          carelessly or willfully and stubbornly endeavors to
          saddle the public with wholly uncalled-for expense.


Id. The lesson
to be drawn from Adkins is that the courts must

not forget that the public has a legitimate financial interest at

stake under the in forma pauperis statute, and that the

judiciary's role is not only to consider, but to protect, the

public's interest in assuring that the in forma pauperis

legislation does not serve wasteful ends.

          In addition to authorizing a court to dismiss abusive

claims when those claims are appropriately classified as

"frivolous or malicious," § 1915(d) also serves the frequently

overlooked purpose of providing the courts with a vehicle for
conserving scarce judicial resources and assuring that resources

are used in the most just manner possible.    See 
Adams, 40 F.3d at 74
("[Section 1915(d) is] a statutory provision whose purpose is

to conserve judicial resources[.]"); see also Green v. McKaskle,

788 F.2d 1116
, 1120 (5th Cir. 1986) ("Section 1915 provides free

access to the courts.   Care must be taken to ensure that such

access is not abused."); Anderson v. 
Coughlin, 700 F.2d at 43
,

(Section 1915 "demands that attention be paid to the conservation



                                21
of scarce judicial resources.").     It is our view that § 1915(d)

was not intended to allow indigent persons cost-free access to

the federal courts such that the courts' resources could be

depleted by complaints that paying litigants would not file.0 The

important goal of assuring equality of consideration for all

litigants is not furthered when the courts allow such trivial

claims to drain their limited resources.

           In sum, we conclude that Congress intended the court to

look to the plain meaning of "frivolous" in § 1915(d).     We hold

that § 1915(d) authorizes a court to dismiss an in forma pauperis

claim if it determines that the claim is of little or no weight,

value, or importance, not worthy of serious consideration, or

trivial.

                               IV.

           To find that an in forma pauperis litigant's claim is

trivial, a court must be satisfied that the record supports a

finding that a reasonable paying litigant would not have filed

the same claim after considering the costs of suit.    Accordingly,

the court must first find the actual amount in controversy under

the claim presented0 and determine whether the amount in
0
  Courts sometimes require in forma pauperis plaintiffs to pay a
portion of court costs and filing fees. Jones v. Zimmerman, 
752 F.2d 76
, 79 (3d Cir. 1985); see Walker v. People Express
Airlines, Inc., 
886 F.2d 598
, 601 (3d Cir. 1989), cert. denied,
498 U.S. 832
, 
111 S. Ct. 97
, 
112 L. Ed. 2d 68
(1990). We commend
such procedures. Although we believe that requiring partial
payment remains a sound solution, it is not necessary that
district courts rely exclusively on partial payment, particularly
when § 1915(d) authorizes the dismissal of claims that are filed
because there is no economic disincentive.
0
   We are mindful that some litigants request large sums for a
monetary remedy. That a complaint requests a large sum in

                                22
controversy is less than the expense of the court costs and

filing fees.   If the court so determines, then the claim is a

candidate for dismissal as frivolous under § 1915(d).0

          The court must next determine whether the litigant has

a meaningful nonmonetary interest at stake under the claim, such

that service of the complaint and an allocation of the court's

resources for its adjudication is warranted, despite the fact

that the claim is economically trivial.   If, in addition to

finding that the amount of damages in controversy is less than

the court costs and filing fees, the court is satisfied that

there is no other meaningful interest at stake, then the suit is

frivolous within the meaning of § 1915(d).

          The relevant guidepost for a district court is whether

a reasonable paying litigant would have paid the court costs and

filing fees to bring the same claim.   We do not, however, confine

the courts to rigid formulae when determining whether a claim is

sufficiently "meaningful" to survive dismissal as frivolous.     Cf.

damages should be of no moment when a district court inquires as
to whether a claim is economically trivial. See Butz v.
Economou, 
438 U.S. 478
, 507, 
98 S. Ct. 2894
, 
57 L. Ed. 2d 895
(1978) ("Insubstantial lawsuits can be quickly terminated by
federal courts alert to the possibilities of artful pleading.")
0
  Related litigation expenses (e.g., attorney's fees, the threat
of sanctions), which along with court costs and filing fees
enhance the economic disincentive for the paying litigant, must
not be considered in determining whether the amount in
controversy under the claim is economically trivial. The in
forma pauperis statute is concerned only with clearing the hurdle
created by court costs and filing fees. 
Denton, 504 U.S. at 27
(Section 1915 "allows an indigent litigant to commence a civil or
criminal action in federal court without paying the
administrative costs of proceeding with the lawsuit."); 
Neitzke, 490 U.S. at 324
. Accordingly, a court must not factor in other
litigation expenses when making this initial determination.


                                23
Tabron v. Grace, 
6 F.3d 147
, 157-58 (3d Cir. 1993) ("Section

1915(d) gives district courts broad discretion to determine

whether appointment of counsel is warranted, and the

determination must be made on a case-by-case basis."), cert.

denied, ___ U.S. ____, 
114 S. Ct. 1306
, 
127 L. Ed. 2d 657
(1994).

Nevertheless, the courts should be cognizant of several

considerations.

          We recognize emotions are intensified in the insular

life of a correctional facility and that prisoners often must

rely on the courts as the only available forum to redress their

grievances, even when those grievances seem insignificant to one

who is not so confined.   A court must therefore take into account

the unique nature of each claim presented and the extent to which

the claim is "meaningful" to one in the litigant's situation.

Hence, in determining whether a claim is meaningful, a court must

protect the right of indigent persons to have access to the

courts.   See In re Oliver, 
682 F.2d 443
, 446 (3d Cir. 1982).

          A court must also consider whether the litigant is

filing the litigation to pursue a non-meaningful activity, such

as harassment or entertainment, or merely to hone litigation

skills.   See Cruz v. Beto, 
405 U.S. 319
, 326-327, 
92 S. Ct. 1079
,
1084, 
31 L. Ed. 2d 263
(1972) (per curiam) (Rehnquist, J.,

dissenting)   ("[Inmates are] in a different litigating posture

than persons who are unconfined.      The inmate stands to gain

something and lose nothing from a complaint stating facts that he

is ultimately unable to prove.   Though he may be denied legal

relief, he will nonetheless have obtained a short sabbatical in


                                 24
the nearest federal courthouse.") (footnotes omitted); Lumbert v.

Illinois Dep't of Corrections, 
827 F.2d 257
, 259 (7th Cir. 1987)

("the problem of [frivolous litigation] is even more acute when

the indigent plaintiff is a prison inmate, because the costs of a

prisoner's time are very low."); Savage v. Central Intelligence

Agency, 
826 F.2d 561
, 563-64 (7th Cir. 1987) ("No rational system

of government burdens its highest courts with a class of

litigation dominated by petty cases typically brought for their

nuisance value by persons on whose hands time hangs heavy.").

          In sum, a court must balance the equities and dismiss

the claim only if it is satisfied that the claim is of little or

no weight, worth, or importance; not worthy of serious attention;

or trivial.   We do not intend to exhaust the considerations

relevant to assessing whether a claim is trivial.    We are

confident that the district courts will be able to weigh the

contending equities, exercise their discretion, and identify

those claims that properly survive this frivolousness inquiry.

See 
Denton, 504 U.S. at 33
("[F]rivolousness is a decision

entrusted to the discretion of the court entertaining the in
forma pauperis petition," and reviewed only for abuse of that

discretion employed in sorting the wheat from the chaff.).

          Finally, we emphasize that our holding should not be

construed to derogate a court's obligation to consider a pro se

complaint liberally.   See Haines v. Kerner, 
404 U.S. 519
, 520-21,

92 S. Ct. 594
, 
30 L. Ed. 2d 245
(1972) (per curiam).   Moreover, we

are not suggesting that a complaint's factual contentions should

not be weighed in the plaintiff's favor.   
Denton, 504 U.S. at 32
.


                                25
Indeed, we stress that, if a court is in doubt as to whether the

actual amount in controversy is economically trivial, or in doubt

as to whether the claim is meaningful, then the plaintiff must be

given the benefit of that doubt, for we do not intend that courts

use monetary worth as an excuse to brush legitimate grievances

aside.

                                 V.

          Reading Deutsch's pro se complaint with the requisite

latitude, we agree with the district court that his claim against

the United States is appropriately considered under the Federal

Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680

(1988).   Cognizable claims under the FTCA include those that are
           [1] against the United States, [2] for money damages,
           ... [3] for injury or loss of property, ... [4] caused
           by the negligent or wrongful act or omission of any
           employee of the Government [5] while acting within the
           scope of his office or employment, [6] under
           circumstances where the United States, if a private
           person, would be liable to the claimant in accordance
           with the law of the place where the act or omission
           occurred.


28 U.S.C. § 1346(b); Federal Deposit Ins. Corp v. Meyer, ___ U.S.
____, ____, 
114 S. Ct. 996
, 1001, 
127 L. Ed. 2d 308
(1994) (claim

against United States is cognizable under the FTCA if it alleges

the six elements outlined above).     Before commencing an action

under the FTCA, a claimant must have first presented the claim,

in writing and within two years after its accrual, to the

appropriate federal agency, and the claim must have been denied.

28 U.S.C. §§ 2401(b), 2675(a).   To be properly presented to the

federal agency, the damages claim must be for a sum certain.    28



                                 26
C.F.R. § 14.2(a) (1987).    The requirements that a claimant timely

present a claim, do so in writing, and request a sum certain are

jurisdictional prerequisites to a suit under the FTCA.      Corte-

Real v. United States, 
949 F.2d 484
, 485-86 (1st Cir. 1991)

(citations omitted).

           Deutsch alleged that he submitted his claim to a

federal agency for consideration, and that the agency declined to

offer a settlement.    Weighing Deutsch's allegations in his favor

for purposes of a § 1915 analysis, it appears that he satisfied

the FTCA exhaustion requirement.       A review of the complaint also

suggests that the six elements for a cognizable FTCA claim are

present.   See 
Meyer, 114 S. Ct. at 1001
.      Deutsch's claim is

against the United States for money damages, and he has accused

several prison guards, presumably government actors, of

committing the alleged wrong while acting in the scope of their

employment.    Significantly, the FTCA does not set a minimum

required amount in controversy that must be sought as relief in

order to maintain jurisdiction.    Free v. United States, 
879 F.2d 1535
, 1536 (7th Cir. 1989).    Therefore, it appears that Deutsch

has a claim that, on its face, is cognizable in federal court

under the FTCA.

           Deutsch's claim is, however, frivolous beyond question

within the meaning of § 1915 (d), and he must pay the court costs

and filing fees if he wishes to file it.      First, the amount of

damages in controversy under the complaint is $4.20, an amount

less than the $120 payment required for the court costs and

filing fees.    Second, irrespective of the trivial amount in


                                  27
controversy, the allegations proffered in the complaint suggest

that there are no interests at stake beyond the recovery of the

$4.20; hence, there is no other meaningful interest at stake.       We

are satisfied that Deutsch's claim is undoubtedly one that the

reasonable paying litigant would not file.

          We find that several facts contribute to a

determination that this claim is trivial.    Preliminarily,

Deutsch's complaint should cause a district court to wonder

whether Deutsch is interested in recovering the damages

requested, or whether he is simply honing his already overused

litigation skills.   See note 
4, supra
.   In addition, an opinion

by the Seventh Circuit's Court of Appeals provides an

enlightening discussion of Deutsch's past litigation experiences.

See note 
2, supra
.

          Aside from the fact that we are satisfied that

Deutsch's claim lacks meaning to him as a frequent filer of

frivolous complaints, we find that a court's obligation to guard

its resources counsels dismissal of this claim.    Indeed, this

claim lacks meaning from the court's point of view such that

dismissal would be warranted even if the claim were brought by a

litigant who had never before filed an in forma pauperis suit in
federal court.   Significantly, the reasonable paying litigant

would not find justification for the expense of filing suit in a

moral or other non-monetary victory over the defendant.       The

appellant is no longer incarcerated at the facility where the

alleged wrong occurred, and, quite obviously, he has another pen.

Moreover, the public simply should not be paying for an indigent


                                28
litigant to pursue in federal court a claim that the paying

litigant is practically barred from pursuing.    Although we will

not establish a bright line for determining when a claim seeking

an amount of damages that is insufficient to warrant forgiveness

of the court costs and filing fees, we find that this claim for

$4.20 is certainly insufficient.

          In sum, Deutsch may seek to recover for the loss of his

pens by pursuing remedies afforded by the prison and the agencies

of the federal government.    After exhausting those remedies,

however, Deutsch will have to pay court costs and filing fees if

he wishes to sue for his loss in federal court because his claim

is "frivolous" under § 1915(d).    We note that the district

court's dismissal of Deutsch's complaint under § 1915(d) did not

preclude his filing a paid complaint making the same allegation.

See 
Denton, 504 U.S. at 34
.

                                VI.

          Deutsch's motion for leave to appeal in forma pauperis

will be granted.   However, for the foregoing reasons, the

district court's order will be summarily affirmed.




                                  29

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