Filed: Nov. 23, 1992
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 92-1694 Summary Calendar Spencer Charles Parker, Plaintiff-Appellant, VERSUS Don Carpenter, Sheriff, ET Al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of Texas (November 23, 1992) Before THORNBERRY, HIGGINBOTHAM and BARKSDALE, Circuit Judges. THORNBERRY, Circuit Judge: Proceeding pro se and in forma pauperis, Parker filed an action under 42 U.S.C. § 1983 alleging retaliatory acts, delibera
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 92-1694 Summary Calendar Spencer Charles Parker, Plaintiff-Appellant, VERSUS Don Carpenter, Sheriff, ET Al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of Texas (November 23, 1992) Before THORNBERRY, HIGGINBOTHAM and BARKSDALE, Circuit Judges. THORNBERRY, Circuit Judge: Proceeding pro se and in forma pauperis, Parker filed an action under 42 U.S.C. § 1983 alleging retaliatory acts, deliberat..
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-1694
Summary Calendar
Spencer Charles Parker,
Plaintiff-Appellant,
VERSUS
Don Carpenter, Sheriff, ET Al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
(November 23, 1992)
Before THORNBERRY, HIGGINBOTHAM and BARKSDALE, Circuit Judges.
THORNBERRY, Circuit Judge:
Proceeding pro se and in forma pauperis, Parker filed an
action under 42 U.S.C. § 1983 alleging retaliatory acts,
deliberate tardiness in tending to serious traumatized injuries and
deliberate lack of adequate post-operative treatment. No
evidentiary hearing was ordered by the district court, and the
action was dismissed because the court concluded that Parker had no
realistic chance of ultimate success in the action. In addition,
the court noted that Parker was attempting to re-litigate claims
previously made in a similar action. Finding merit in Appellant's
claims, we reverse the dismissal of Appellant's action and direct
the district court to conduct proceedings not inconsistent with
this opinion.
Facts and Prior Proceedings
Appellant Spencer Charles Parker filed this civil rights
action against Tarrant County Sheriff Don Carpenter, the Tarrant
County Medical Examiner and the jail and jail administrator. The
action was filed in forma pauperis pursuant to 28 U.S.C. § 1915.
Appellant alleges that the defendants violated his civil rights
when, out of retaliation, a jail guard moved Appellant from a low-
risk minimum security facility to a high security area inhabited by
more violent inmates. As a result of the transfer, Appellant was
permanently disabled by the loss of his right eye after being
assaulted by a violent inmate. Appellant further alleges that jail
personnel were slow to get him medical attention and were later
indifferent toward getting him timely post-operative treatment.
The district court dismissed the action concluding that
Appellant had no realistic chance of ultimate success on his
claims.1
Standard of Review
This court reviews dismissal of a civil rights action filed by
a pretrial detainee proceeding in forma pauperis for abuse of
discretion. Cay v. Estelle, 789 F.2d 318, 326 (5th Cir. 1986)
(citing Green v. McKaskle,
788 F.2d 1116, 1120 (5th Cir. 1986)).
1
While a district court may dismiss sua sponte an IFP
proceeding as frivolous after initial examination of the
complaint, the court need not label the dismissal "frivolous"
under 28 U.S.C. § 1915(d). Spears v. McCotter, 766 F.2d 179, 181
(5th Cir. 1985). This circuit approves dismissal of an IFP
proceeding under § 1915(d) when it lacks an arguable basis in
fact and law. ANCAR v. SARA Plasma,
964 F.2d 465 (5th Cir.
1992).
Discussion
A. The Controlling Principles
Due to potential abuses by prisoners proceeding in forma
pauperis, this circuit has given district courts broad discretion
in making the determination of whether an in forma pauperis
complaint is frivolous. Cay, 789 F.2d at 325 (citations omitted).
As we have noted before, it is not always easy to determine whether
a claim is frivolous simply by examining a complaint written by a
prisoner unfamiliar with the rules of our courts. Prisoner
complaints, more often than not, are difficult to decipher.
However, this court has insisted that when it is not apparent from
the face of the complaint whether the prisoner's contentions are
frivolous or not, the district court should make an effort to
develop the known facts until satisfied that either the claims have
merit or they do not. See
Cay, 789 F.2d at 325. We have
suggested that this may be done in a number of ways.2 It should
be remembered that Congress enacted § 1915 to allow indigent
persons meaningful access to the federal courts. While this court
2
A district court may send a questionnaire to a prisoner
before service, requiring him to give greater detail about the
facts and his claims. Cay, 789 F.2d at 323 (citing Watson v.
Ault,
525 F.2d 886, 893 (5th Cir. 1976)). The court may also
authorize a magistrate to hold an evidentiary hearing to
determine whether the claims are frivolous.
Cay, 789 F.2d at 323
(citing
Spears, 766 F.2d at 182). This is otherwise known as a
Spears hearing. In addition, this circuit cited with approval
the procedure developed by the Tenth Circuit: ordering the
prison officials to investigate the facts surrounding a civil
rights suit by inmates to construct "an administrative
record...to enable the trial court to...make a determination [of
frivolity]...."
Cay, 789 F.2d at 323 n.4 (citing Martinez v.
Aaron,
570 F.2d 317 (10th Cir. 1978). More recently, this court
allowed a pro se § 1983 complainant to conduct discovery in
order to more adequately state his claim. Murphy v. Kellar,
950
F.2d 290 (5th Cir. 1992).
is mindful that in forma pauperis complaints have the potential to
flood the federal judiciary with frivolous litigation, it is also
incumbent upon the district courts to be sensitive to possible
abuses by the prison system in order to ensure that prisoner
complaints, especially pro se complaints, are not dismissed
prematurely. Jackson v. Cain,
864 F.2d 1235, 1241 (5th Cir. 1989)
(citing Taylor v. Gibson,
529 F.2d 709, 713 (5th Cir. 1976)).3
Repeating what we have stated before,
An opportunity should be provided [for] the prisoner to
develop his case at least to the point where any merit it
contains is brought to light... Pro se prisoner
complaints must be read in a liberal fashion and should
not be dismissed unless it appears beyond all doubt that
the prisoner could prove no set of facts under which he
would be entitled to relief.
Id. The Supreme Court defines a "frivolous" complaint as a
complaint lacking any arguable basis either in law or in fact.
Neitzke v. Williams,
490 U.S. 319,
109 S. Ct. 1827, 1831,
104
L. Ed. 2d 338 (1989). Utilizing these principles in reviewing the
dismissal of this prisoner's pro se complaint, we find that the
district court abused its discretion. We cannot say, without a
more thorough presentation of the facts, that Appellant's complaint
lacks any arguable basis either in law or in fact that would
entitle him to relief in this circuit.
B. The Legal Claims
3
This is not to say that there exists no situation where,
based solely on an examination of the complaint, the complaint
could be dismissed as frivolous. For example, under some
situations, a prisoner making allegations under the Eighth and
Fourteenth Amendments must allege facts sufficient to establish
that prison officials were deliberately indifferent to his
rights. See Daniels v. Williams, ___U.S. ___, 106 S. Ct. 662,
88
L. Ed. 2d 662 (1986); Whitley v. Albers, ___U.S.___,
106 S. Ct.
1078,
89 L. Ed. 2d 251 (1986).
1. Retaliation
The record indicates that Appellant was a pretrial detainee
during the events that form the basis of his complaint. In Bell v.
Wolfish, 441 U.S. 520,
99 S. Ct. 1861,
60 L. Ed. 2d 447 (1979), the
Supreme Court determined that pretrial detainees may not be
subjected to treatment amounting to punishment since they have not
been adjudged guilty of any crime. Therefore, if a particular act,
condition or restriction accompanying pretrial detention amounts to
punishment, it is forbidden. Cupit v. Jones,
835 F.2d 82, 85 (5th
Cir. 1987). In addition, this circuit holds that an action or
inaction related to a pretrial detainee is considered punishment
unless it is reasonably related to a legitimate governmental
objective.
Id. Appellant's complaint alleges that after he had a
verbal altercation with a jail officer, he was punished or
retaliated against when he was transferred from the low-risk
minimum security section to the overcrowded violent inmate section
of the Tarrant County Jail. He alleges that it was common practice
after a verbal altercation with jail personnel to simply be moved
around within the minimum security section, not transferred to the
violent offenders section. He further alleges that when he was
placed in the violent offender section, he was denied access to a
bed to lay down on, despite jail official's knowledge of his
serious back condition. It appears that Appellant has plead that
his transfer to the violent inmate section was an act of punishment
which is a legal claim cognizable under a § 1983 claim. We cannot
say that Appellant's complaint lacks an arguable basis in law and
fact because pretrial detainees are entitled to protection from
adverse conditions of confinement created by prison officials for
punitive purposes.
Id. In addition, we cannot say that the
government had a legitimate objective for moving Appellant to the
violent inmate section because there has never been any evidentiary
hearing in this action nor have the opposing party defendants even
been served.
2. Medical Treatment
Pretrial detainees are entitled to reasonable medical care,
"unless the failure to supply it is reasonably related to a
legitimate governmental objective." Cupit, 835 F.2d at 85. No one
can say for sure whether Appellant's treatment was reasonable
without the presentation of more facts. Therefore, upon remand,
the district court should fully investigate the facts surrounding
Appellant's allegations of unreasonable medical care.
C. Appointment of Counsel
This court may base a decision to appoint counsel on many
factors, including:
1. the type and complexity of the case;
2. the petitioner's ability adequately to present and
investigate his case;
3. the presence of evidence which largely consists of
conflicting testimony so as to require skill in
presentation of evidence and in cross-examination;
and
4. the likelihood that appointment will benefit the
petitioner, the court, and the defendants by
"shortening the trial and assisting in just
determination."
Murphy, 950 F.2d at 293 n.14 (quoting Cooper v. Sheriff, Lubbock
County, Texas,
929 F.2d 1078, 1084 (5th Cir. 1991)). If
Appellant's claims survive preliminary exploration, in light of
factors two and three above--namely that Appellant is a prisoner
who, without counsel, would have to investigate by himself the
prison's policies and employees of the very jail where he is
incarcerated--we direct, in addition to holding some type of
evidentiary hearing, the district court to appoint counsel to help
the Appellant fully investigate his claims and provide
representation at any evidentiary hearings.
D. Prior Similar Claims
The district court states in its memorandum opinion that
Appellant has attempted to relitigate claims previously dismissed
for want of a realistic chance of ultimate success and therefore
his present complaint warrants dismissal. After review of the
record, we find that Appellant's claim of retaliation is a new
claim not previously brought before the district court. In
addition, the record indicates that Appellant's medical claims,
while argued previously before the district court, were never fully
investigated in conformance with prior decisions of this court.
See Jackson, 864 F.2d at 1241.
Conclusion
Appellant's complaint alleges claims that if substantiated,
would entitle Appellant to relief in this circuit. Whether or not
Appellant can sustain those claims against the Tarrant County Jail
and its employees can only be determined if Appellant is given a
chance to fully investigate the events surrounding his claims.
Therefore, we reverse the dismissal of Appellant's action and
remand for proceedings consistent with this judgment.
