Nasim v. Warden, Maryland House of Correction , 64 F.3d 951 ( 1995 )

Affirmed by published opinion. Judge NIEMEYER wrote the opinion for the court, in which Judges RUSSELL, WIDENER, HALL, WILKINSON, WILKINS, HAMILTON, LUTTIG, and WILLIAMS joined. Judge WILKINSON wrote a concurring opinion, in which Judges RUSSELL, WIDENER, WILKINS, HAMILTON, and WILLIAMS joined. Judge MOTZ wrote a dissenting opinion, in which Chief Judge ERVIN and Judges MURNAGHAN and MICHAEL joined.

OPINION

NIEMEYER, Circuit Judge:

Section 1915(a) of Title 28 of the United States Code authorizes a district court to accept for filing, without the payment of costs, lawsuits brought by persons unable to pay such costs, and § 1915(d) authorizes the court to dismiss the suit before it is served “if satisfied that the action is frivolous or malicious.” In this case we examine the appropriate standard for the district court to apply when screening these in forma pau-peris cases and the standard for our review of the district court’s decisions.

I

Ghulam M. Nasim, proceeding pro se and in forma pauperis under 28 U.S.C. § 1915, filed suit in the district court under 42 U.S.C. § 1983 against the Warden of the Maryland House of Correction in Jessup, Maryland, and others allegedly involved in removing asbestos at the House of Correction for Eighth Amendment violations. Nasim alleges that the defendants deliberately exposed him to asbestos when asbestos removal contractors “dumped” asbestos into his prison cell while he was incarcerated during the period from April 1983 to November 1989 and that, as a result, he sustained a relapse from stroke, lung disease, eye disease, skin lesions, and psychological harm. Almost four years after he had been transferred from the Maryland House of Correction to a federal prison, he filed the complaint in this case.

Reviewing the complaint before authorizing service of process, the district court concluded that Nasim was in fact indigent but decided to dismiss the action as frivolous under 28 U.S.C. § 1915(d), without requiring service on defendants. The court ruled that the complaint was time-barred on its face, as it revealed that Nasim knew or should have known of his injury and its cause at the time the asbestos was being removed in 1989. In particular, the district court referred to the second paragraph of Nasim’s complaint where Nasim alleged:

Plaintiff and other inmate witnessed and observed on several occasions when Asbestos crew secretly entered into the F-Building during night hours and neither prison staff nor the contractor gave any protection, warning or respirator to the Plaintiff or any other inmate at the F-Building during this entire period [in 1989].

The court concluded that Nasim’s action, filed in September 1993, almost four years after the alleged asbestos removal, was time-barred under the applicable three-year statute of limitations.

On motion for reconsideration based on newly discovered evidence, Nasim alleged that he did not know that the asbestos caused his injury until 1991 when he received information that he had requested under the Freedom of Information Act and read news articles in The Baltimore Sun about “hundreds of similar lawsuits filed in the Circuit Court for Baltimore City” which “substantiated that ‘exposure to cancer-causing asbestos chemicals had enhanced plaintiffs relapse from stroke on February 6, 1989’ in addition to lung, skin, eye and ear disease.... ” The district court denied the motion for reconsideration, concluding that the facts advanced by Nasim did not relieve him of the “burden of timely filing his action.”

On appeal, a panel of this court, in a divided opinion, reversed the judgment of the district court, applying a standard of review which “requires appellate courts to examine carefully both the complaint and the legal principles governing the limitations defense.” Nasim v. Warden, 42 F.3d 1472, 1477 (4th Cir.1995). The panel opinion concluded that:

A general awareness that asbestos poses certain unidentified health risks, as evidenced here by Nasim’s complaints to prison officials, does not warrant the conclusion, at least at this preliminary stage, that Nasim possessed sufficient information that he knew, or should have known, ... that the asbestos was the probable cause of his health problems....

Id. at 1480 (internal citations and quotations omitted). In ordering a rehearing en banc, we vacated the panel decision, and now we affirm the judgment of the district court.

II

The federal in forma pauperis statute, first enacted in 1892, is intended to guarantee that no citizen shall be denied access to the courts “solely because his poverty makes it impossible for him to pay or secure the costs.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342, 69 S.Ct. 85, 90, 93 L.Ed. 43 (1948). The statute advances a policy of equality of access, ensuring that those who cannot afford the payment of costs have the same ability to present meritorious claims as those who can afford such payment.

Congress recognized that when it eliminated the requirement for paying costs for the purpose of ensuring “equal treatment for every litigant before the bar,” see Coppedge v. United States, 369 U.S. 438, 447, 82 S.Ct. 917, 922, 8 L.Ed.2d 21 (1962), it was also removing any “economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989). In an effort to prevent the abuse of litigation that free access to the courts might encourage, the statute confers discretion on the district court to dismiss an action as frivolous if the court is “satisfied” that the action lacks an arguable basis either in law or in fact. See 28 U.S.C. § 1915(d); Neitzke, 490 U.S. at 325, 109 S.Ct. at 1831-32. As the Court in Neitzke explained:

Section 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 and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11.

Id. at 327, 109 S.Ct. at 1833. Thus, the discretion granted to district judges to screen out meritless cases serves as the surrogate for the constraint which financial considerations provide “in the realm of paid cases.” Neitzke, 490 U.S. at 328, 109 S.Ct. at 1833.

If meritless suits were not linked to some measure of accountability, the free access to the courts, coupled with an intent to misuse the system,¹ would predictably clog the judicial system to such an extent that “meritorious complaints [would] receive inadequate attention or be difficult to identify amidst the overwhelming number of meritless complaints.” Neitzke, 490 U.S. at 326, 109 S.Ct. at 1832 (emphasis added). That concern is not insubstantial. Data from the Fourth Circuit, for example, show that during the last three years, the percentage of informa pau-peris filings on appeal has increased from about one-third to one-half of all filings, and the raw numbers have increased from 1,331 in fiscal year 1992 to 2,133 for the first ten months of fiscal year 1995 (2,560 annualized).²

Section 1915(d) in effect appoints the district court as the gatekeeper of in forma pauperis filings, armed with meaningful discretion to exclude those cases which it is satisfied are frivolous. The district court’s role is defined in Neitzke:

[T]he statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless.

490 U.S. at 327, 109 S.Ct. at 1833. The authority to “pierce the veil of the complaint’s factual allegations” means that the district court is not bound to “accept without question the truth of the plaintiffs allegations” as it might be when considering a motion under Rule 12(b)(6). Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992). While that authority does not authorize the district court to engage in factfinding to resolve disputed facts, it does permit the court to apply common sense, reject the fantastic, and rebut alleged matters with judicially noticeable facts. Id. at 32-33, 112 S.Ct. at 1733-34.

Thus, to provide free access to the courts without overwhelming the efficient administration of justice with meritless cases, the system relies primarily on the judgment of the district courts to permit suits that are arguably meritorious and to exclude suits that have no arguable basis in law or fact.³

In deference to the discretion that Congress has conferred on the district courts, we review a district court’s decision to dismiss a case under § 1915(d) only for abuse of that discretion. See Denton, 504 U.S. at 33, 112 S.Ct. at 1733-34. See also Adams v. Rice, 40 F.3d 72, 74 (4th Cir.1994) (noting that Congress’ use of the word “satisfied” indicates an intent to afford a district court’s decision to dismiss under § 1915(d) “wide latitude” and “substantial deference”), cert. denied, — U.S. -, 115 S.Ct. 1371, 131 L.Ed.2d 227 (1995). This deferential standard of review is, in large measure, intended to keep the screening process in the district courts, which are in the best position to ascertain facts that are “clearly baseless,” Denton, 504 U.S. at 33,112 S.Ct. at 1734, and to limit appellate oversight to only those circumstances where the district court’s discretion has been abused.

Applying these principles, we turn to the district court’s decision in this case.

Ill

The district court concluded in this case that Nasim’s complaint was baseless because, on its face, the complaint demonstrates that it was not timely filed, as it was not filed within three years after the claims accrued. See Todd v. Baskerville, 712 F.2d 70, 74 (4th Cir.1983) (affirming district court’s dismissal under § 1915(d) of actions which appeared on their face to be barred by statute of limitations). The district court noted that the statute of limitations for a claim under 42 U.S.C. § 1983 is borrowed from state law, see Wilson v. Garcia, 471 U.S. 261, 266-69, 105 S.Ct. 1938, 1942-43, 85 L.Ed.2d 254 (1985), and that Maryland applies its general three-year statute of limitations to similar tort actions. But the court correctly observed that even though the limitation period is borrowed from state law, the question of when a cause of action accrues under 42 U.S.C. § 1983 remains one of federal law. See Cox v. Stanton, 529 F.2d 47, 50 (4th Cir.1975).

Under federal law a cause of action accrues when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action. See United States v. Kubrick, 444 U.S. 111, 122-24, 100 S.Ct. 352, 359-60, 62 L.Ed.2d 259 (1979). In Kubrick, the Court held that for a cause of action to accrue, it is critical that the plaintiff know that he has been hurt and who inflicted the injury. Once imputed with that knowledge, the plaintiff is on inquiry notice, imposing on him a duty to inquire about the details of negligence that are reasonably discoverable. “To excuse him from promptly [making inquiry] by postponing the accrual of his claim would undermine the purpose of the limitations statute.” Id. at 123, 100 S.Ct. at 360.

In Kubrick, a VA hospital administered the antibiotic neomycin to Kubrick in connection with the treatment of an infection. Six weeks later Kubrick began to experience a loss of hearing, and shortly thereafter he was advised by doctors that it was highly possible that his loss of hearing was the result of the neomycin treatment. However, Kubrick did not know that the use of neomy-cin could be considered an improper treatment. More than two years later, after the applicable statute of limitations had run, Kubrick learned that the administration of neo-mycin may have constituted medical malpractice. In holding that Kubrick’s claim was time-barred, the Supreme Court noted that when the plaintiff knew that he was hurt and knew who inflicted his injury, he was obliged to inquire further about the potential for a negligence claim. Accrual of a claim does not “await awareness by the plaintiff that his injury was negligently inflicted.” 444 U.S. at 123, 100 S.Ct. at 360. See also Childers Oil Co. v. Exxon Corp., 960 F.2d 1265, 1272 (4th Cir.1992). Thus, for purposes of a § 1983 claim, a cause of action accrues either when the plaintiff has knowledge of his claim or when he is put on notice—e.g., by the knowledge of the fact of injury and who caused it— to make reasonable inquiry and that inquiry would reveal the existence of a colorable claim.

To the extent that our earlier decision in Portis v. United States, 483 F.2d 670 (4th Cir.1973), may stand for a standard contrary to that adopted in Kubrick, it was overruled by Kubrick, and it is now well established that a federal cause of action accrues upon inquiry notice. See also Gould v. United States Dep’t of Health & Human Servs., 905 F.2d 738, 742 (4th Cir.1990) (en banc), cert. denied, 498 U.S. 1025, 111 S.Ct. 673, 112 L.Ed.2d 666 (1991); Blanch v. McKeen, 707 F.2d 817, 819-20 (4th Cir.), cert. denied, 464 U.S. 916, 104 S.Ct. 279, 78 L.Ed.2d 258 (1983).

Turning to Nasim’s complaint, we conclude that the allegations therein fully support the district court’s judgment. But more importantly, we cannot conclude that the district court abused its discretion in dismissing it.

In his complaint, Nasim alleges that during his incarceration at the Maryland House of Correction from April 1983 to November 1989 he “suffered several attacks of relapse from stroke, lung disease, eye disease, and skin lesion from asbestos exposure.” He complains that in 1989 asbestos was falling into his prison cell, an observation which he reported to doctors, nurses, the warden, and the acting commissioner of corrections. He alleges that he discovered from a prison official and another inmate that the warden had authorized an asbestos contractor to clean up the asbestos in the prison while inmates were “asleep and locked into their cages.” He states that neither prison officials nor the contractor attempted to warn or protect him, despite their recognition at the time that “desk officers claimed severe hea[l]th hazard[s] from asbestos inhalation and subsequently quit from the employment mainly [because] the warden refused to provide respirator[s] for their protection.” He alleges that the contractor was later fired because it negligently scraped asbestos, failed to adopt adequate protective measures, and failed to warn prison officials. Nasim also alleges that no notice or warning was provided “to [him] nor to any other inmates who died or suffered severe respiratory or other medical problems during this illegal and malicious act of the defendants.” Nasim claims that he suffered not only physical but psychological injuries as a result of the asbestos removal, and demands several million dollars in compensatory and punitive damages.

The complaint thus reveals that during the 1989 period (1) Nasim knew that asbestos was “dumped” into his prison cell and that he was exposed to it; (2) he knew who “dumped” the asbestos into his cell; (3) he knew that asbestos presented a health hazard; (4) he complained to nurses, doctors, and prison authorities about the exposure; (5) he witnessed other persons who he believed were seriously injured by asbestos; and (6) he suffered physical and psychological injuries. The record also shows that Nasim is a doctor who practiced medicine and surgery in the United States and England for several years before his conviction.

While Nasim may yet be able to assert that he did not know specifically that asbestos was linked to strokes, eye disease, or skin disease (assuming such a linkage may be plausibly maintained), the indisputable facts remain that Nasim knew of his injury and who caused it, and that he believed that they were linked, as he implies in alleging that he sustained psychological harm. Moreover, the fact that Nasim alleges that he complained to medical and prison personnel in 1989 reveals sufficient knowledge for finding that his claim accrued while he was still at the Maryland House of Correction. Notwithstanding his awareness of his asbestos exposure and of the nature of his injuries, Nasim waited until after he read about asbestos lawsuits in the Baltimore newspapers before he filed his complaint — some four years after he had been transferred from the Maryland House of Correction.

Thus, there can be little doubt that Nasim not only knew that he had been exposed to asbestos, that he had been injured, and who “dumped” the asbestos in his cell, he also knew that asbestos was dangerous and that others at the prison had been injured by it. The district court thus concluded from the face of his complaint that Nasim possessed sufficient knowledge of his cause of action in 1989 to place him on inquiry notice. And since Nasim filed his complaint four years later, the court found that it was barred by the applicable three-year statute of limitations. In these circumstances, the district court did not abuse its discretion in concluding that the action was frivolous under 28 U.S.C. § 1915(d).

Accordingly, the judgment of the district court is

AFFIRMED.

1 . As we previously have observed about prisoner litigation, all too often such litigation has been initiated to provide a "mere outlet[ ] for general discontent” or "personal satisfaction in attempting to harass prison officials.” Evans v. Croom, 650 F.2d 521 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982). Prisoner litigation constitutes roughly 75% of the in forma pauperis cases filed in the Fourth Circuit.

2 . The data from the Fourth Circuit show:

Fiscal year

In forma pauperis filings

Total filings

Ratio of in forma pauperis filings

1992 1993 1994 1995 (10 months)

1,331 1,584 1,702 2,133

3,949 4,390 3,995 4,332

33.7% 36.1% 42.6% 49.2%

3 . That is not to say that some financial incentives could not be built into the system. For instance, we have approved local rules and orders that require an in forma pauperis plaintiff to pay a partial filing fee based on income received within a specified period preceding the filing of the in forma pauperis motion, but not to exceed 15% of the aggregate income received. See Evans v. Croom, 650 F.2d 521 (4th Cir.1981) (approving as reasonable an order in the Eastern District of North Carolina requiring partial filing fees for prisoners ranging from $1.00 to $33.00), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982). Other district courts have adopted similar provisions in their local rules. See, e.g., E.D.Va.R. 28; D.S.C.R. 22.02. Whether provisions of this type have the desired effect of encouraging in forma pauperis litigants to file only meritorious claims cannot be determined from the public data available at the Fourth Circuit. Such provisions, however, may force in forma pauperis litigants to " 'confront the initial dilemma which faces most other potential civil litigants: is the merit of the claim worth the cost of pursuing it?' ” Evans, 650 F.2d at 524 (quoting Braden v. Estelle, 428 F.Supp. 595, 596 (S.D.Tex.1977)).