Sidney Marts v. Phillip Hines , 117 F.3d 1504 ( 1997 )

POLITZ, Chief Judge:

We have taken this case en banc to resolve relevant conflicting circuit precedents, to continue our development of procedures to address and dispose appropriately of a continually burgeoning prisoner pro se docket, both at the trial and appellate levels,¹ and to note an appropriate awareness of the intervening Prison Litigation Reform Act of 1995.²

Background

The facts concerning the appeal by Sidney Marts of his 42 U.S.C. § 1983 complaint against an assistant district attorney for Orleans Parish, Louisiana, a public defender, and a private attorney representing a code-fendant in a state court criminal action, are set forth in the panel opinion.³ Marts’ complaint implicated the integrity of the state court criminal proceeding, thus requiring the district court to make a threshold determination whether his action was not frivolous and justified the retention of federal jurisdiction.⁴ The trial court dismissed without prejudice the claim for money damages against the private counsel and public defender because they were not state actors, and that against the prosecutor on the basis of absolute immunity. Finding no factual basis for the conspiracy charge it was dismissed as frivolous, also without prejudice. The panel modified the dismissals to be with prejudice, except for the conspiracy claim, and affirmed the trial court. We determined that because of conflicting circuit precedents it was necessary to revisit this issue en banc.

Analysis

Once again we consider the application of limited judicial resources to an ever increasing number of prisoner pro se filings. Our task, simply stated, is to implement procedures which will aid in the separation of the wheat from the chaff in such filings as early in the judicial process as is possible, in an effort to ensure that judicial resources will not be wasted and that the meritorious claims may receive the timely attention and disposition warranted.

The rule that the in limine dismissals of actions by the district court generally are to be with prejudice⁵ particularly fits dismissals under the former 28 U.S.C. § 1915(d), now a part of 28 U.S.C. § 1915(e)(2).⁶ Dismissals under the informa pauperis statute are in a class of their own, acting not as dismissals on the merits but, rather, as denials of informa pauperis status.⁷ Typically, but not exclusively, such dismissals may serve as res judi-cata for subsequent in forma pauperis filings, but they effect no prejudice to the subsequent filing of a fee-paid complaint making the same allegations.⁸ Exceptions included complaints containing claims which, on their, face, were subject to an obvious meritorious defense,⁹ or instances in which the plaintiff was given an opportunity to expound on the factual allegations by a Watson questionnaire or a Spears hearing and could not assert a claim with an arguable factual basis,¹⁰ or claims without an arguable basis in law.¹¹

On en banc reconsideration, considering the distinct features of such in forma pauperis proceedings, we now hold that dismissals as frivolous or malicious should be deemed to be dismissals -with prejudice unless the district court specifically dismisses without prejudice. When the trial court dismisses without prejudice it is expected that the court will assign reasons so that our appellate review of the trial court’s exercise of discretion may be performed properly. Unexplained dismissals without prejudice will necessitate a remand.

We reserve for another day and an appropriate appeal the question of the full application of this rule to the expanded bases for denial of in forma pauperis status specified in the Prison Litigation Reform Act.

In reaching today’s decision we have determined and now hold that in cases involving dismissals as frivolous or malicious under the in forma pauperis statute, in which the defendant has not been served and was, therefore, not before the trial court and is not before the appellate court, the appellate court, notwithstanding, has the authority to change a district court judgment dismissing the claims without prejudice to one dismissing with prejudice, even though there is no cross-appeal by the obviously non-present “appellee.” This limited exception is the product of our effort to make effective the prudential rule announced herein.

Consistent with today’s holding we must now vacate and remand this action to the district court for entry of-an order of dismissal with prejudice except as relates to the conspiracy claim and for such further proceedings as may be deemed appropriate.

VACATED and REMANDED.

1 . Including but not limited to procedures established in Watson v. Ault, 525 F.2d 886 (5th Cir.1976) (supplementing questionnaire); Spears v. McCotter, 766 F.2d 179 (5th Cir.1985) (informal hearing); Graves v. Hampton, 1 F.3d 315 (5th Cir.1993).

2 . Title VIII of the Omnibus Consolidated Rescis-sions and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Slat. 1321 (1996).

3 . 68 F.3d 134 (5th Cir.1995), reh'g en banc granted, 79 F.3d 17 (5th Cir.1996).

4 . See Ballard v. Wilson, 856 F.2d 1568 (5th Cir.1988) (citing Deakins v. Monaghan, 484 U.S. 193, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988) (when a section 1983 action might have a disruptive effect upon contemporaneous state criminal proceedings, the federal district court should stay its hand)).

5 . See Fed.R.Civ.P. 41(b) which provides in pertinent part:

Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

6 . Section 1915(e)(2) now reads:

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.

7 . Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992).

8 . Id. The Supreme Court teaches that the dismissal may have a res judicata effect on frivolousness determinations for future in forma pauperis petitions.

9 . One example is a claim subject to a peremptory time bar where no amendment or subsequent paid filing could overcome the fatal defects. Graves.

10 . Id.

11 . Id. (noting one likely scenario — an allegation of infringement of a claimed legal interest which does not exist).