Albert G. Gibson v. R.G. Smith Company

DAVID A. NELSON, Circuit Judge,

concurring.

Like my colleagues, I am not particularly enthusiastic about the procedure followed by the district court. The procedure did not work well in this instance, and it may have some potential for abuse. Given both the language of 28 U.S.C. § 1915 and our own circuit precedent, however, I am not prepared to suggest that a case in the posture of this one could never be dismissed before the filing of a formal com *264 plaint, regardless of whether the district court could be sure that the action was frivolous.

Turning first to the specifics of the case before us, I note that the record contains no indication that the court-appointed attorney gave Mr. Gibson a copy of the brief he filed with the district court. The certificate of service accompanying the brief says only that a copy was mailed to R. G. Smith Co. The Supreme Court’s opinion in Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967) _ a case dealing with counsel appointed at the appellate level _ teaches that “[a] copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses_” Id. at 744 , 87 S.Ct. at 1400 . This should have been done here.

Under Anders , moreover, appointed counsel should “advise the court of what points he might have raised and why he thinks they would have been frivolous.” United States v. Edwards, 777 F.2d 364, 365 (7th Cir.1985) (per curiam). It seems to me that counsel failed to discharge this duty adequately in the case at bar. If the facts set forth in the brief are true, I do not understand how the attorney could be certain that Mr. Gibson’s claim is without substance. The brief indicates that Mr. Gibson, a black man, was told by R.G. Smith Co. that the company would hire him as a carpenter “off-the-street,” and the next thing he knew the company had used the union hiring hall to fill the position in question with a white man. Under the applicable collective bargaining agreement, we are told, “R.G. Smith had the option of hiring either off-the-street, or through the Union Hall.” But the fact that the agreement gave R.G. Smith such an option obviously does not rule out the possibility that the company used the option to engage in impermissible discrimination. The district court had no basis for concluding that Mr. Gibson’s action was frivolous, in my view, and I therefore agree that the judgment of dismissal represented an abuse of discretion.

If a proper Anders brief had been filed in this case, on the other hand, and if the plaintiff had been given an opportunity to respond to it, I do not believe that the district court would have had to allow the filing of a formal complaint even if it were clear that the complaint would be frivolous. 1 The attorney surely could not be required to file a complaint that he believed to be without merit, see Edwards, 777 F.2d at 365 , and if the district court, after being properly advised, had been in a position to determine that any complaint filed pro se would be frivolous, the mere fact that the plaintiff had not filed frivolous complaints in the past would not require the district court to let him start now.

I think that we are bound on this point by Loum v. Underwood, 262 F.2d 866, 867 (6th Cir.1959), where we held as follows:

“The right to proceed in forma pauper-is under Sec. 1915, Title 28, U.S. Code, is not an unqualified one. The statute provides that the Court ‘may authorize’ the commencement or prosecution of a suit without prepayment of fees and costs. (Emphasis added.) If the proposed action is clearly without merit, it is within the discretion of the District Judge to deny the application.” (Citations omitted.)

If Congress had intended that persons without means should have an unqualified right to file frivolous complaints, Underwood reasoned, the first sentence of § 1915(a) would have been mandatory, not permissive: it would have said the district court “shall authorize” the commencement of the action without prepayment of fees. Because the statute says instead that the court “may authorize” the commencement of the action_i.e., “may” permit a com *265 plaint to be filed_Underwood was probably correct in holding, as it did, that the district court may decline to allow the filing of a frivolous complaint.

Whether Underwood was decided correctly or not, however, it would be a sharp break with the traditions of this circuit for a three-judge panel to overrule it without the concurrence of a sufficient number of active judges to place the authority of the full court behind such a decision. The short per curiam opinion in Brooks v. Dutton, 751 F.2d 197 (6th Cir.1985), may contain dicta that do not fit comfortably within the holding of Underwood , but the results reached in the two cases are entirely consistent, 2 and Dutton did not even cite Underwood , much less purport to overrule it.

The conclusion that an indigent person has an absolute right to file at least one frivolous complaint in forma pauperis is refuted not only by Underwood , but by a wealth of legal history. See Wartman v. Branch 7, Civil Division, County Court, Milwaukee County, Wis., 510 F.2d 130, 132 (7th Cir.1975). Citing Duniway, The Poor Man in the Federal Courts, 18 Stan.L.Rev. 1271, 1272-73 (1966), and Maguire, Poverty and Civil Litigation, 36 Harv.L.Rev. 361, 377 (1923), Wartman notes that our in forma pauperis statute was modeled on a statute of Henry VII under which, beginning no later than 1744, a person seeking permission to file a complaint in forma pauperis had to have a lawyer certify that the applicant “hath good Cause of Action.” Wartman, 510 F.2d at 132 . And as the Supreme Court observed in Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 45 , 35 S.Ct. 236, 237 , 59 L.Ed. 457 (1915), the 1892 version of our in forma pauperis statute “imposed no imperative duty to grant a request to proceed as a poor person[,] but merely conferred authority to do so when the fact of poverty was established and the case was found not to be frivolous_” (Emphasis supplied.)

The statute was amended in 1910, but the “safeguards provided for the exercise of the authority found in the statute as originally enacted were not changed by the amendment....” Id. Wherever the amended statute authorized the giving of permission to proceed as a poor person, on the contrary, the statute preserved “judicial discretion to determine the poverty ... of the applicant and the meritorious character of the cause in which the relief was asked.” Id. at 46, 35 S.Ct. at 238 . (Emphasis supplied.) Although there have been amendments subsequent to 1910, none of them, as far as I am aware, was intended to effect any change in this respect.

In Neitzke v. Williams, 490 U.S. 319 , 109 S.Ct. 1827 , 104 L.Ed.2d 338 (1989), to be sure, the Supreme Court held that a failure to state a claim within the meaning of Rule 12(b)(6), Fed.R.Civ.P., would not automatically make an in forma pauperis complaint “frivolous” within the meaning of § 1915(d). But Neitzke did not hold that there can be no such thing as a frivolous in forma pauperis complaint, and the decision expressly refrained from holding that courts must allow such complaints to be filed. The Court cited Wartman , and after noting a split of circuit authority on whether the decision to grant pauper status should be treated “as a threshold inquiry based exclusively on the movant’s poverty,” the Court went on to say that “we have no occasion to consider the propriety of these. varying applications of the statute.” Id at n. 1. The Court did not cite our decision in Loum v. Underwood, and obviously did not overrule it.

If 28 U.S.C. § 1915 (a) gives district courts discretion not to allow frivolous complaints to be filed in forma pauperis, as Underwood squarely holds that it does, a district court that wished to exercise such discretion would not have to rely on § 1915(d). But the question whether *266 § 1915(d) necessarily presupposes the filing of a complaint may have some significance in the statute of limitations area, and I hope our decision here will not be read as undercutting the well-established rule that a pauper’s case is commenced on the date of the filing of an application for authority to proceed in forma pauperis, and not on the date of the filing of a complaint. See Mohler v. Miller, 235 F.2d 153 (6th Cir.1956).

It is true that the authors of Rule 3, Fed.R.Civ.P., said without qualification that “[a] civil action is commenced by filing a complaint with the court.” But the authors of § 1915(d) said without qualification that “the case” may be dismissed “if the allegation of poverty [in a § 1915(a) affidavit] is untrue” _and this seems to presuppose that a “case” may be commenced by precisely the sort of pre-com-plaint filing that Mr. Gibson made in the case at bar.

Mr. Gibson’s application contains virtually all of the elements of a true complaint. It has a proper caption. It has a file number assigned by the court. It has a title that names the plaintiff and the defendant. It states the grounds on which the court would have jurisdiction over the action. It contains a short and plain statement of a claim showing that the plaintiff is entitled to relief. And if Mohler v. Miller is still good law, its filing was sufficient to stop the running of the statute of limitations.

For me, this is enough to show that a “case” was pending before the district court. I believe that such a case may be dismissed if the court concludes that the allegation of poverty is untrue or if the court is satisfied that the action is frivolous or malicious. When § 1915(d) says “[t]he court ... may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious,” I do not think it is saying that the court must automatically permit the frivolous complaint to be filed first.

. A refusal by the district court to allow the filing of a complaint would not make the prior granting of in forma pauperis status meaningless. Under a procedure patterned on that sanctioned in Anders , a person granted pauper status would be given a lawyer, and the lawyer would file a complaint unless he or she determined that a complaint would be frivolous. In that event the indigent person would be allowed time “to raise [with the court] any points that he chooses.... ” None of this could happen, of course, without the indigent person first having received leave to proceed in forma pauperis.

. We are told in Dutton that "the complaint was filed,” and the district court then "dismissed the complaint” sua sponte. 751 F.2d at 198 . "The real basis for the dismissal," the Dutton panel went on to say, was not 28 U.S.C. § 1915 (a) — on which the dismissal in Underwood was based, it will be recalled_but § 1915(d); and under § 1915(d), the panel held, the dismissal was proper. Id. Accordingly, the decision to dismiss the complaint was affirmed.