Grayson v. Mayview State Hosp

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

6-7-2002

Grayson v. Mayview State Hosp

Precedential or Non-Precedential: Precedential

Docket No. 99-3980

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PRECEDENTIAL

Filed June 7, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-3980

NORMAN GRAYSON,

Appellant

v.

MAYVIEW STATE HOSPITAL; ALLEGHENY COUNTY JAIL;

CAMP HILL PRISON

*United States of America,

Intervenor

*(Pursuant to Court Order dated 4/4/01)

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 99-479)

District Judge: Honorable Gary L. Lancaster

Argued: April 6, 2001

Before: SCIRICA, AMBRO and GIBSON,

Circuit Judges**

(Filed: June 7, 2002)

_________________________________________________________________

** The Honorable John R. Gibson, Senior Circuit Judge, United States

Court of Appeals for the Eighth Circuit, sitting by designation.

Nancy Winkelman

J. Denny Shupe (Argued)

Schnader, Harrison, Segal & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Counsel for Appellant

John G. Knorr, III

Calvin R. Koons

J. Bart DeLone (Argued)

Office of the Attorney General

of Pennsylvania

Department of Justice

Strawberry Square, 15th Floor

Harrisburg, PA 17120

Counsel for Appellees

Mayview State Hospital and

Camp Hill Prison

David W. Gray

Jeanette H. Ho (Argued)

Pietragallo, Bosick & Gordon

301 Grant Street

One Oxford Centre, 38th Floor

Pittsburgh, PA 15219

Counsel for Appellee

Allegheny County Jail

Richard A. Olderman

United States Department of Justice

Civil Division, Appellate Staff

601 D Street, N.W., Room 9128

Washington, DC 20530

Counsel for Intervenor

United States of America

2

OPINION OF THE COURT

AMBRO, Circuit Judge:

Norman Grayson, an inmate at various times of the three

institutions named as defendants, brought this pro se

damages action under 42 U.S.C. S 1983, alleging the

defendants were deliberately indifferent to his medical

needs in violation of the Eighth Amendment. The District

Court granted Grayson leave to proceed in forma pauperis,

but denied his further request for appointed legal counsel.

Upon the defendants’ motions, the Court dismissed

Grayson’s complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6).

Although the Court found that his claims had possible

substantive merit if pled adequately, it did not provide leave

to amend before dismissing the action. This was contrary to

our Court’s rule, established before Congress enacted the

Prison Litigation Reform Act ("PLRA"),1 that such leave must

be granted when amendment could cure the deficiency and

would not be inequitable. See Dist. Council 47 v. Bradley,

795 F.2d 310, 316 (3d Cir. 1986); Darr v. Wolfe , 767 F.2d

79, 81 (3d Cir. 1985); Borelli v. City of Reading, 532 F.2d

950, 951 n.1 (3d Cir. 1976); see also Shane v. Fauver, 213

F.3d 113, 116 (3d Cir. 2000)(discussing pre-PLRA law).

The primary question presented on appeal is whether

S 804(a)(5) of the PLRA, codified at 28 U.S.C.S 1915(e)(2),

altered the legal landscape so that the District Court did

not need to grant leave to amend before dismissing

Grayson’s deficient in forma pauperis complaint. We

addressed a similar provision of the PLRA in Shane, a non-

in-forma-pauperis case. There we held that S 803(d) of the

PLRA, codified in part at 42 U.S.C. S 1997e(c)(1), did not

alter our rule that inadequate complaints should be

dismissed without granting leave to amend only if

_________________________________________________________________

1. Despite its name, the PLRA was actually passed in 1996 as Title VIII

of the Omnibus Consolidated Recissions and Appropriations Act of 1996.

See Pub. L. No. 104-134, Title VIII, SS 801-10, 110 Stat. 1321 (1996)

(codified in scattered sections of the United States Code).

3

amendment would be inequitable or futile. Shane , 213 F.3d

at 116-17. However, we reserved the question of whether

the nearly identical S 1915(e)(2) should be interpreted

differently. Id. at 117. Today we reach that question and

hold that S 1915(e)(2) requires the same response.2

I.

Grayson’s complaint alleges that surgery was performed

on his knee in early 1998 at the Mayview State Hospital to

correct an injury he sustained playing basketball. While the

complaint names the Hospital, it does not allege that he

received negligent or inadequate care there. Later in 1998,

Grayson was transferred to the Allegheny County Jail,

where he claims his "leg ropes"3 were confiscated and his

requests for medical assistance were refused. While

incarcerated there, Grayson’s knee injury worsened after a

fall in a stairwell occasioned by a defective handrail, which

fell out of the wall while he was handcuffed to another

prisoner for transport to a court hearing. He claims that he

requested medical assistance after the fall, but received

none. Grayson was later transferred to a third facility and

eventually to the Camp Hill Prison ("SCI-Camp Hill"), where

he alleges three or four weeks passed before he received

treatment for his knee. Grayson’s complaint does not name

any individual defendants. It also fails to allege that any of

the facilities where he was kept maintains a pattern or

practice of denying medical assistance to inmates.

The defendants responded to Grayson’s complaint by

moving to dismiss for failure to state a claim. The Hospital

and SCI-Camp Hill, both agencies of the Commonwealth of

_________________________________________________________________

2. In this context, we need not consider Grayson’s contentions that (1) an

in forma pauperis plaintiff ’s fundamental right of access to the courts is

violated if he is denied leave to amend an inadequate complaint, (2) it

would violate equal protection to deny in forma pauperis plaintiffs the

procedural safeguards afforded prisoner plaintiffs under Shane, and (3)

that the District Court erred under Tabron v. Grace, 6 F.3d 147, 153 (3d

Cir. 1993), by not requesting counsel to represent him under 28 U.S.C.

S 1915(e)(1).

3. Though we have no further explanation of this term, we assume

Grayson refers to a knee brace of some sort.

4

Pennsylvania, argued that the Eleventh Amendment barred

Grayson’s claims against them. The Jail, an agency of

Allegheny County, argued that Grayson failed to plead that

it had a policy, practice, or custom of deliberate indifference

toward prisoners’ requests for medical treatment. The

District Court referred the action to a Magistrate Judge,

who recommended granting the motions to dismiss. In the

course of these proceedings Grayson filed a self-styled

"Memorandum Order" that further explained the factual

basis for his suit and identified allegedly responsible

individuals. Other than invoking the term "deliberate

indifference" to describe the conduct of the defendants, the

"Memorandum Order" was not responsive to the arguments

made in the motions to dismiss.

The District Court considered Grayson’s "Memorandum

Order" and the Magistrate Judge’s recommendation. In a

brief statement, the Court adopted the recommendation

and dismissed Grayson’s action without further comment.

Grayson appealed4 and our Court appointed pro bono

counsel.5

II.

Before considering the effect of S 1915(e)(2) on in forma

pauperis complaints, we address whether Grayson’s

complaint should have been dismissed under pre-PLRA law.

Grayson does not dispute that his claims against the two

Commonwealth defendants, Mayview State Hospital and

SCI-Camp Hill, were properly dismissed on Eleventh

Amendment grounds under Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984). Rather, he contests

only the dismissal of his claim against the Allegheny

County Jail. Grayson maintains that his "Memorandum

Order," submitted in response to the defendants’ motions to

dismiss, contained sufficient factual statements to meet the

pleading requirements of a "short and plain statement of

_________________________________________________________________

4. The District Court had jurisdiction pursuant to 28 U.S.C. SS 1331,

1343(a)(3). We have jurisdiction under 28 U.S.C.S 1291.

5. We acknowledge with appreciation the able and zealous pro bono

representation of Grayson by Nancy Winkelman and J. Denny Shupe.

5

the claim." Fed. R. Civ. P. 8(a). According to Grayson, his

allegations support a claim of deliberate indifference to his

medical needs in violation of the Eighth Amendment. See

Estelle v. Gamble, 429 U.S. 97, 104 (1976); Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999); Monmouth

County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346

(3d Cir. 1987).

Were Grayson’s claims made against an individual

defendant, the contents of his complaint and

"Memorandum Order" would adequately place that

defendant on notice that he alleges deliberate indifference

to his medical needs. But Grayson is not suing any

individual;6 he seeks relief only from the Jail. Hence the

stringent requirements for municipal liability apply:

Grayson must allege that a "policy or custom" of the Jail

was the "moving force" behind a violation of his Eighth

Amendment rights. See Bd. of County Comm’rs of Bryan

County v. Oklahoma, 520 U.S. 397, 404 (1997); Berg v.

County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000).

Because Grayson alleges a constitutional violation was

committed by the Jail’s employees, rather than by the Jail

itself, to satisfy the "moving force" requirement he must

allege that the Jail was deliberately indifferent to the

possibility that such a violation would occur. Bryan County,

520 U.S. at 407; Berg, 219 F.3d at 276.

Neither Grayson’s complaint nor his "Memorandum

Order" alleges that the Jail had a policy of denying medical

treatment to inmates. Nor does he allege that other inmates

suffered similar deprivations of medical attention that

might establish a custom. See Bielevicz v. Dubinon, 915

F.2d 845, 850 (3d Cir. 1990). Lacking any indication from

Grayson’s filings of what policy or custom he seeks to

challenge under S 1983, we cannot say that the Jail had

"fair notice of what the plaintiff ’s claim is and the grounds

upon which it rests." Conley v. Gibson, 355 U.S. 41, 47

(1957).

Having determined that the District Court correctly

concluded that Grayson’s filings were inadequate, we turn

_________________________________________________________________

6. Grayson’s "Memorandum Order" erroneously states that he is suing

various individuals, even though none was joined as a defendant.

6

to the manner in which the Court dismissed his action.

Under Rule 15(a), if a plaintiff requests leave to amend a

complaint vulnerable to dismissal before a responsive

pleading is filed, such leave must be granted in the absence

of undue delay, bad faith, dilatory motive, unfair prejudice,

or futility of amendment. Foman v. Davis, 371 U.S. 178,

182 (1962); In re Burlington Coat Factory Sec. Litig., 114

F.3d 1410, 1434 (3d Cir. 1997). The first four of these

reasons devolve to instances where permitting amendment

would be inequitable.7 Thus amendment must be permitted

in this context unless it would be inequitable or futile. "Of

course, the grant or denial of an opportunity to amend is

within the discretion of the District Court, but outright

refusal to grant the leave without any justifying reason [i.e.,

inequity or futility] appearing for the denial is not an

exercise of discretion; it is merely abuse of that discretion

and inconsistent with the spirit of the Federal Rules."

Foman, 371 U.S. at 182.

When a plaintiff does not seek leave to amend a deficient

complaint after a defendant moves to dismiss it, the court

must inform the plaintiff that he has leave to amend within

a set period of time, unless amendment would be

inequitable or futile. See Shane, 213 F.3d at 116 (internal

quotation marks omitted); see also Dist. Council 47, 795

F.2d at 316; Darr, 767 F.2d at 81; Borelli, 532 F.2d at 951

n.1. Indeed, "we have never required plaintiffs to request

leave to amend" in this context. Dist. Council 47, 795 F.2d

at 316.

The District Court did not follow these principles. Before

it dismissed the case, the Court should have--absent

inequity or futility of amendment--specifically advised

Grayson that he could amend his complaint and given him

a chance to do so. Neither inequity nor futility of

amendment is present. There is no suggestion that Grayson

lacks good faith or proper motives. As noted above, a

properly amended complaint would state a claim upon

which Grayson could obtain relief, and none of the

defendants suggests otherwise.

_________________________________________________________________

7. Moreover, some of them overlap (e.g., dilatory motive is but an

example of bad faith).

7

Finally, we cannot say that Grayson’s receipt of the

defendants’ motions to dismiss and the Magistrate Judge’s

recommendation constitutes the functional equivalent of

the procedure outlined in our cases. See, e.g. , Shane, 213

F.3d at 116. The motions and recommendation apprised

Grayson of his pleadings’ deficiencies, but failed to inform

him "expressly" that he could amend his complaint to fix

the problem.8 Borelli, 532 F.2d at 951 n.1. Therefore, under

our pre-PLRA precedent, the District Court erred. It should

have told Grayson that he had leave to amend his

complaint to cure its deficiencies and granted him a set

period of time in which to do so.9

III.

The defendants contend that 28 U.S.C. S 1915(e)(2)

required the District Court to dismiss Grayson’s complaint

without providing leave to amend. While the Court did not

rely on the PLRA, we can affirm on any ground supported

by the record. Hughes v. Long, 242 F.3d 121, 122 n.1 (3d

Cir. 2001).

As amended by the PLRA, S 1915(e)(2) states the

following:

_________________________________________________________________

8. Indeed, the Magistrate Judge’s recommendation may have contributed

to Grayson’s confusion on what was required to survive dismissal. It

states that, to make a showing of municipal liability on Grayson’s

claims, he "must demonstrate reckless or intentional indifference . . . or

a policy or custom on the part of the defendant resulting in injury."

However, both deliberate indifference and a policy or custom of the

defendant municipality are necessary to maintain aS 1983 suit such as

Grayson’s. See Bryan County, 520 U.S. at 403-07; Berg, 219 F.3d at

276. While Grayson’s subsequently filed "Memorandum Order"

mentioned deliberate indifference, it did not identify a "policy or custom,"

perhaps in reliance on the recommendation’s disjunctive phrasing.

9. We cannot say that Grayson’s "Memorandum Order" is properly

construed as a motion to supplement his complaint or declaration that

he will stand on his pleadings. Indeed, the District Court characterized

the "Memorandum Order" as "objections" to the Magistrate’s

recommendation, not as an amended pleading. For the sake of clarity, a

prisoner plaintiff (or any other plaintiff) should not be able effectively to

amend a complaint through any document short of an amended

pleading.

8

Notwithstanding any filing fee, or any portion thereof,

that may have been paid, the court shall dismiss the

case at any time if the court determines that--

(A) the allegation of poverty is untrue; or

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be

granted; or

(iii) seeks monetary relief against a defendant who

is immune from such relief.

While this provision is limited to in forma pauperis plaintiffs,10

at least two other provisions of the PLRA contain similar

dismissal requirements. For prisoners seeking relief from "a

governmental entity or [its] officer or employee," PLRA

S 805(a), codified at 28 U.S.C. S 1915A, provides a screening

process to separate cognizable claims from those lacking

merit.11 Like S 1915(e)(2), the screening process of S 1915A

_________________________________________________________________

10. Although the language of S 1915(e)(2) does not expressly limit the

provision’s reach to in forma pauperis claims, we believe Congress

intended it to be so limited. See Benson v. O’Brian, 179 F.3d 1014,

1016-17 (6th Cir. 1999). The provision is located within S 1915, entitled

"Proceedings in forma pauperis," and it replaces S 1915(d), which only

applied to in forma pauperis claims. Id. at 1016. Further, a contrary

interpretation expanding S 1915(e)(2) to all suits would both alter

radically the process of civil litigation in federal courts and make similar

provisions of the PLRA superfluous. Id. at 1017. Indeed, we have

previously stated that "Section 804 of the PLRA, which amends 28

U.S.C. S 1915, redefines the rights and obligations of litigants who are

granted in forma pauperis status." Santana v. United States, 98 F.3d

752, 753-54 (3d Cir. 1996).

11. The relationship between the screening provision in 28 U.S.C.

S 1915A and the other dismissal provisions, 28 U.S.C. S 1915(e)(2) and

42 U.S.C. S 1997e(c), was well explained in McGore v. Wrigglesworth, 114

F.3d 601, 608 (6th Cir. 1997). Section 1915A "is applicable at the initial

stage of the litigation, while S 1915(e)(2)[and 42 U.S.C. S 1997e(c) are]

. . . applicable throughout the entire litigation process." Id. Thus, the

PLRA sets up a two-step dismissal process by which dismissal can occur

early for the facially inadequate complaints pursuant to the screening

statute or can occur later by either of the remaining provisions "should

it become apparent that the case satisfies [one of these] sections." Id.

9

targets claims that are "frivolous, malicious, or fail[ ] to

state a claim upon which relief may be granted; or .. .

seek[ ] monetary relief from a defendant who is immune

from such relief." 28 U.S.C. S 1915A. Similarly, pursuant to

PLRA S 803(d), codified in part at 42 U.S.C.S 1997e(c)(1),

prisoners challenging prison conditions will have their

complaints dismissed for the same reasons.

Because Grayson is a prisoner proceeding in forma

pauperis and challenging the conditions of his confinement,

all three of these PLRA provisions could apply to his case.

However, S 1915A is not at issue because the District Court

did not implement a screening process. Moreover, under

Shane S 1997e(c)(1) does not support the Court’s failure to

grant leave to amend. See 213 F.3d at 117. Therefore, to

prevail the defendants must convince us to treat

S 1915(e)(2) differently from the similar provision,

S 1997e(c)(1), at issue in Shane. 12

Sections 1915(e)(2) and 1997e(c)(1) apply to different

(though often overlapping) sets of claimants, but the

differences end there. Section 1997e(c)(1), the provision at

issue in Shane, states that a district court

shall on its own motion or on the motion of a party

dismiss any action brought with respect to prison

conditions . . . by a prisoner . . . if the court is satisfied

that the action is frivolous, malicious, fails to state a

claim upon which relief can be granted, or seeks

monetary relief from a defendant who is immune from

such relief.

42 U.S.C. S 1997e(c)(1). We concluded in Shane that

S 1997e(c)(1) did not affect our pre-PLRA requirement that,

where a defendant moves to dismiss a deficient complaint,

the court should grant leave to amend unless amendment

_________________________________________________________________

12. The parties’ discussion is limited to S 1915(e)(2)(B)(ii), which

mandates dismissal when a complaint "fails to state a claim upon which

relief may be granted." Because Grayson also sued the Hospital and SCI-

Camp Hill, both of which are immune from liability, subsection (iii)--

which applies to actions seeking "monetary relief against a defendant

who is immune"--is also implicated. Because this does not change our

analysis, we will discuss S 1915(e)(2) generally and not parse its

subsections further.

10

would be inequitable or futile. Shane, 213 F.3d at 116-17.

The most natural reading of S 1915(e)(2) is no different.

Both provisions employ the same language, borrowed from

Rule 12(b)(6), to require that district courts shall dismiss

complaints that fail to state a claim.

Defendants suggest that the words "shall dismiss" in

S 1915(e)(2) should be read to require district courts to

dismiss deficient complaints without granting leave to

amend. We rejected an identical argument in Shane.

We acknowledge that the words of the statute do not

foreclose the following, more expansive reading: if a

complaint fails to state a claim for any reason,

including a pleading error that could be cured by

amendment, the court "shall . . . dismiss" forthwith

and without permitting a curative amendment. But we

believe that this reading is more strained and would

produce results that we doubt Congress wanted. If

"shall . . . dismiss" were interpreted to mean"shall

dismiss forthwith and without permitting a curative

amendment," it would seem that a court would be

required to grant a motion to dismiss a technically

defective claim even if a request for leave to amend to

cure the defect were pending. We doubt that Congress

wanted to require such a harsh, and seemingly

pointless, result. We are also hesitant to conclude that

Congress meant to change established procedures

without a clearer indication than we have here.

Id. at 117. We continue to subscribe to this reasoning.

Neither the provision at issue in Shane,S 1997e(c)(1), nor

the in forma pauperis provision applicable here,

S 1915(e)(2), says anything about when to permit

amendment. Thus, there is no reason to depart from our

rule that plaintiffs whose complaints fail to state a cause of

action are entitled to amend their complaint unless doing

so would be inequitable or futile.

The great majority of other courts of appeals which have

interpreted S 1915(e)(2) concur with our interpretation. See

Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en

banc); Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796

(2d Cir. 1999); Perkins v. Kansas Dept. of Corrections, 165

11

F.3d 803, 806 (10th Cir. 1999). The Ninth Circuit noted, as

we do, that S 1915(e)(2) "says only that a court ‘shall

dismiss’ a complaint. It does not say that such a dismissal

may be without leave to amend." Lopez, 203 F.3d at 1127.

Similarly, both the Second and Tenth Circuits found that

the "shall dismiss" language of S 1915(e)(2) did not modify

district courts’ responsibility to grant leave to amend.

Gomez, 171 F.3d at 796; Perkins, 165 F.3d at 806.13 The

Ninth and Tenth Circuits further observed that the

statutory language of the three PLRA dismissal provisions

mirrors that found in Rule 12(b)(6). Lopez, 203 F.3d at

1127; Perkins, 165 F.3d at 806. Thus, there is no reason

that a district court should fail to retain its pre-existing

authority under that rule to permit plaintiffs leave to

amend.

The defendants urge us to adopt the position of the Sixth

Circuit, see Benson v. O’Brian, 179 F.3d 1014, 1016 (6th

Cir. 1999); McGore v. Wrigglesworth, 114 F.3d 601, 612

(6th Cir. 1997), and the dissent in Lopez, see 203 F.3d at

1136 (Sneed, J., dissenting).14 We find these authorities

unpersuasive. The Sixth Circuit reasoned that, because the

PLRA authorizes sua sponte dismissals, it must also remove

district courts’ "discretion in permitting a plaintiff to amend

a complaint to avoid a sua sponte dismissal." McGore, 114

F.3d at 612. But it failed to cite any authority explaining

why sua sponte dismissals must be without leave to amend.

Section 1915(e)(2) does not require dismissal to proceed so

_________________________________________________________________

13. Two additional courts of appeals have adopted our interpretation

with respect to the PLRA’s other dismissal provisions. See Davis v. Dist.

of Columbia, 158 F.3d 1342, 1349 (D.C. Cir. 1998) (holding that district

court should have provided leave to replead before dismissing action

under S 1915A, but that remand was unnecessary because amendment

was futile); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)

(holding that district court should have given plaintiff chance to amend

before dismissing his claims under S 1997e(c), but that error was

harmless because dismissal was without prejudice).

14. Contrary to the defendants’ claim, the Eighth Circuit did not take

this view in Christiansen v. Clarke, 147 F.3d 655, 658 (8th Cir. 1998),

which addressed a prisoner’s constitutional objections to S 1915(e)(2),

not the issue of statutory interpretation presented here.

12

immediately that leave to amend is foreclosed, and we will

not read such a harsh result into the statute.15

Nor do we find the Lopez dissent persuasive. 203 F.3d at

1136 (Sneed, J., dissenting). It relied on a statement in

Neitzke v. Williams, 490 U.S. 319 (1989), characterizing

S 1915(e)(2)’s predecessor, 28 U.S.C. S 1915(d) (1995).

Section 1915(d) provided that a court "may dismiss [an in

forma pauperis] case . . . if satisfied that the action is

frivolous or malicious." Neitzke explained that complaints

that fail to state a claim are not necessarily "frivolous," and

that the term applies to "a more limited set of claims" than

Rule 12(b)(6). 490 U.S. at 329. The Court proceeded to

describe the interaction between Rule 12(b)(6) and

S 1915(d).

Under Rule 12(b)(6), a plaintiff with an arguable claim

is ordinarily accorded notice of a pending motion to

dismiss for failure to state a claim and an opportunity

to amend the complaint before the motion is ruled

upon. These procedures alert him to the legal theory

underlying the defendant’s challenge, and enable him

meaningfully to respond by opposing the motion to

dismiss on legal grounds or by clarifying his factual

allegations so as to conform with the requirements of a

valid legal cause of action. . . . By contrast, the sua

sponte dismissals permitted by, and frequently

employed under, S 1915(d), necessary though they may

sometimes be to shield defendants from vexatious

lawsuits, involve no such procedural protections.

Id. at 329-30 (emphasis added). The Lopez dissent insisted

that, after Neitzke, Congress knew S 1915(d) afforded no

_________________________________________________________________

15. This is not to say the PLRA has no effect beyond what Rule 12(b)(6)

already provides. We have held that district courts may dismiss

complaints under Rule 12(b)(6) sua sponte where appropriate, but only

after service of process. See Oatess v. Sobolevitch, 914 F.2d 428, 430 n.5

(3d Cir. 1990). The PLRA provides authority for dismissals without

regard to whether the opposing party was served with process. Given the

emphasis in the PLRA’s legislative history on the cost to state and local

governments of defending prisoner litigation, see 141 Cong. Rec. S14413

(1995) (statement of Senator Dole), we have no doubt that this

distinction was meant to serve an important purpose.

13

procedural protections for frivolous complaints. Therefore,

the dissent claimed, by enacting S 1915(e)(2)--which

contains language similar to S 1915(d) but adds that the

district court shall dismiss not only frivolous complaints,

but also those that fail to state a claim or seek relief from

a defendant immune from suit--Congress intended that in

forma pauperis complaints inadequate under any of these

standards be immediately dismissed without leave to

amend. Lopez, 203 F.3d at 1138-39.

We are unconvinced by this argument because we believe

it rests on an erroneous reading of both the oldS 1915(d)

and its current manifestation, S 1915(e)(2). Neitzke did not

describe S 1915(d) as involving "no such procedural

protections," as the Lopez dissent and the defendants here

would have us believe. Its language was more precise. It

said "the sua sponte dismissals permitted by, and

frequently employed under, S 1915(d) . . . involve no such

procedural protections." Neitzke, 490 U.S. at 330 (emphasis

added). Put differently, the Court stated two propositions:

S 1915(d) permitted sua sponte dismissals, and those

dismissals did not require leave to amend.16 The latter

proposition is not based on the authority in S 1915(d).

Instead, dismissals of frivolous claims do not require leave

to amend due to the long tradition of denying leave to

amend under Rule 15(a) when amendment is inequitable or

futile. See Foman, 371 U.S. at 182; In re Burlington Coat

Factory Sec. Litig., 114 F.3d at 1434. Thus when Congress

substituted S 1915(e)(2) for the old S 1915(d), thereby

_________________________________________________________________

16. The Lopez dissent further argues that the PLRA mandates immediate

dismissal because former United States Senator Robert Dole once used

the word "immediate" in describing the dismissal provisions. Lopez, 203

F.3d at 1141. The majority points out, however, that Senator Dole’s full

statement is that the "dismissal provisions would allow federal courts to

immediately dismiss a complaint" that fails to state a claim. Lopez, 203

F.3d at 1130 n.11 (citing 141 Cong. Rec. S14408-01, *S14414 (1995)

(emphasis added)). The Senator did not state that immediate dismissal

was required in all cases, regardless whether the complaint could be

amended to state a claim, and thus this passage does not support

defendants’ reading of S 1915(e)(2). Moreover, in context it is apparent

that Senator Dole is speaking of the screening provision, S 1915A, not

the dismissal provision at issue in Shane,S 1997e(c)(1), or the one at

issue here, S 1915(e)(2).

14

adding failure to state a claim and naming immune

defendants as bases for dismissal, it did not mandate

dismissal without leave to amend whenever those

inadequacies arise.17

Nor is the defendants’ reliance on the legislative history

of the PLRA helpful to their interpretation of S 1915(e)(2).

We note initially that there is no legislative history for the

proposition that Congress wanted to deny plaintiffs the

opportunity to amend technically inadequate but potentially

meritorious complaints. Shane, 213 F.3d at 117 ("[W]e are

not aware of any specific support in the legislative history

for the proposition that Congress also wanted the courts to

dismiss claims that may have substantive merit but were

inartfully pled."). Indeed, the legislative history refutes the

defendants’ position. Senator Orrin Hatch stated that "I do

not want to prevent inmates from raising legitimate claims.

This legislation will not prevent those claims from being

raised." 141 Cong. Rec. S14267 (1995). Were we to adopt

the defendants’ interpretation, however, we would require

courts to reject an in forma pauperis claim without further

process not because it lacks merit, but because the litigant

could not afford counsel to draft it better. As we said in

Shane, "[w]e doubt that Congress wanted to require such a

harsh, and seemingly pointless, result." 213 F.3d at 117.

Moreover, Shane interpreted one of the PLRA’s prisoner

dismissal provisions, S 1997e(c)(1), but the defendants rely

upon the in forma pauperis dismissal provisions, SS 1915(e)

& 1915A, on which evidence of congressional intent is

_________________________________________________________________

17. The Ninth Circuit in Lopez would distinguish the Neitzke holding on

the basis that S 1915(d) did not require dismissal, but only permitted it.

"Neitzke did not state that courts were barred from granting leave to

amend under [S] 1915(d), only that courts were not required to grant

leave to amend." Lopez, 203 F.3d at 1128 n.8. This argument, however,

loses its force in light of two ways that the PLRA changed S 1915(d)--

first, it added the "failure to state a claim" language and, second, it

converted the "may dismiss" of S 1915(d) into "shall dismiss" in

S 1915(e)(2). That second change, which madeS 1915(e)(2) dismissals

mandatory for deficient complaints, could be interpreted to require

dismissal without leave to amend under S 1915(e)(2) if one accepts the

dissent’s initial proposition that S 1915(d) required dismissal without

leave to amend.

15

sparse. While the legislative history is rife with pejorative

commentary on overly litigious prisoners,18 it makes only

passing reference to the dismissal of in forma pauperis

complaints.19 The legislative history lacks any clear

expression that Congress intended in forma pauperis

plaintiffs, imprisoned and free alike, to be denied the

opportunity to amend their complaints when that

amendment would neither be inequitable nor futile.

Lastly, in seeking to distinguish the in forma pauperis

dismissal provision from the provision at issue in Shane,

the defendants cite legislative history discussing the need

for economic disincentives to deter litigation by prisoners

who do not pay filing fees.20 The defendants would have us

believe that S 1915(e)(2)’s dismissal provision was intended

to limit the flood of prisoner lawsuits, and that extending

Shane to in forma pauperis complaints would defeat that

purpose.

While Congress intended the PLRA as a whole to reduce

prisoner litigation, S 1915(e)(2) was not necessarily meant to

deter prisoners from filing lawsuits. That objective is

promoted via a separate provision, S 1915(b), which

"establishes an elaborate deferred payment schedule by

which litigants may fulfill their filing fee obligations."

Santana v. United States, 98 F.3d 752, 754 (3d Cir. 1996).

Moreover, we doubt that requiring district courts to deny

leave to amend would lead many prisoners to eschew

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18. For example, Senator Dole stated that "[f]rivolous lawsuits filed by

prisoners tie up the courts, waste valuable judicial resources, and affect

the quality of justice enjoyed by the law-abiding population." 141 Cong.

Rec. S14413 (1995).

19. Indeed, the Lopez majority concluded that there was no evidence in

the legislative history that Congress intended to change the dismissal

procedures for non-prisoner indigent plaintiffs, even though that group

is clearly within the scope of S 1915(e)(2). See Lopez, 203 F.3d at 1129

n.10 (holding that the defendants’ reading "would have harsh

consequences on a group of plaintiffs -- indigent non-prisoners -- not

even intended to be affected by the statute").

20. For instance, Senator Dole said, "As indigents, prisoners are

generally not required to pay the fees that normally accompany the filing

of a lawsuit. In other words, there is no economic disincentive to going

to court." 141 Cong. Rec. S14413 (1995).

16

litigation. Prisoners are unlikely to consider post-filing legal

disincentives in the same way they consider the economic

disincentive created by the payment (albeit gradual) of filing

fees. Furthermore, even if the defendants’ speculation

about prisoners’ cost-benefit assessments is accurate, the

resulting incentive would be to plead facts more specifically,

not to refrain from suing. While this might conserve judicial

resources, a goal of the PLRA, see 141 Cong. Rec. S14413

(1995) (statement of Senator Dole), it would not reduce the

number of lawsuits.

IV.

Lacking any authority to the contrary either in statutory

text or legislative history, we hold that S 1915(e)(2) did not

alter our preexisting rule that in forma pauperis plaintiffs

who file complaints subject to dismissal under Rule 12(b)(6)

should receive leave to amend unless amendment would be

inequitable or futile. Because the District Court dismissed

Grayson’s complaint in contravention of this rule, we

reverse and remand for proceedings consistent with this

opinion.21

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

21. Though we do not reach the question of whether the Magistrate

Judge abused his discretion in failing to request counsel to represent

Grayson under 28 U.S.C. S 1915(e)(1) and this Court’s holding in Tabron

v. Grace, 6 F.3d 147 (3d Cir. 1993), we note that the Court should

reconsider its analysis of the Tabron factors following remand. Should

Grayson submit an amended complaint that does not suffer from the

same inadequacies of his initial one, both the threshold question of

whether "the plaintiff ’s claim [has] some merit in fact and law" and the

six Tabron factors likely require reconsideration. See Parham v. Johnson,

126 F.3d 454, 457 (3d Cir. 1997).

17