Fred M. Anderson and Wayne Nelson, Fred M. Anderson v. Thomas Coughlin, Commissioner, New York State Department of Corrections

CARDAMONE, Circuit Judge:

While the issue before us — did a 12-hour “keeplock” in a maximum security state prison violate plaintiff-inmates’ civil rights — is simply stated, its resolution is more complex and requires detailed analysis. Plaintiffs Fred M. Anderson and Wayne Nelson instituted this action against defendant Thomas Coughlin, Commissioner of the New York State Department of Corrections, for defendant’s alleged violation of plaintiffs’ civil rights in having ordered plaintiff-prisoners confined to their cells in the Great Meadow Correctional Facility on May 21, 1981 for “no reason” and without affording them “equal protection or procedural due process." Anderson appeals pro se from an order of the United States District Court for the Northern District of New York (Munson, J.) dated October 19, 1981 which dismissed the complaint. We affirm the district court’s dismissal.

I

In May 1981 New York State Correction Officer Donna Payant became the first female prison guard murdered while on duty. Her death occasioned extensive publicity within the State. Commissioner Coughlin issued a directive calling for a statewide cell confinement of inmates (known as a “keep-lock” or “lockdown”) so that correction officers throughout the State¹ could attend Payant’s funeral on May 21, 1981.

On May 20, 1981 suit was brought in the United States District Court for the Southern District of New York by an inmate seeking to prevent the confinements authorized by Coughlin. Flaherty v. Coughlin, (S.D.N.Y. May 20, 1981). Late that afternoon District Judge Sweet held a hearing at which he enjoined the Commissioner “from instituting a keeplock except on an institution-by-institution basis arising out of emergency conditions or jeopardy to the safety or security of the [particular] institution” resulting from lack of sufficient personnel. He also ordered that officials attempt to minimize the necessity for general lockdowns. Accordingly, on the day of the funeral inmates were confined to their cells at only three of the State’s 33 correctional facilities — the maximum security prison at Green Haven (site of the murder), the maximum security prison at Great Meadow and the medium security prison at Bayview.

For having been confined to their cells during the 12-hour keeplock at Great Meadow on May 21st plaintiffs instituted a pro se action each seeking $1000 in damages for violation of their civil rights, presumably under 42 U.S.C. § 1983. Their complaint was sent directly to Magistrate Conan in accordance with 28 U.S.C. § 636(b) and Rule 43(c)(4) of the General Rules for the Northern District of New York. The Magistrate ordered it filed as of June 16, 1981, granted plaintiffs leave to proceed in forma pauperis and ordered that service of process should issue without payment of fees. On June 30 plaintiffs filed a motion for summary judgment together with a supporting memorandum of law, which was denied as untimely by the Magistrate because defendant had not yet been served. Plaintiffs then amended their complaint to include reference to Fifth Amendment due process in addition to the previously asserted Fourteenth Amendment due process claim. Defendant sought and was granted a 30-day extension to respond to the complaint. In the meanwhile plaintiffs filed a motion for default judgment which was denied on the basis of the 30-day extension.

On July 21 defendant made a motion to dismiss the complaint under Fed.R.Civ.P. 12(b) for failure to state a claim upon which relief may be granted. This motion was accompanied by an affidavit of Assistant Attorney General Mary Bisantz indicating that the keeplock was imposed for “non-punitive, administrative reasons occasioned by temporary lack of sufficient correctional personnel to staff the facility on that day.” Magistrate Conan issued a report recommending that the defendant’s motion be granted and the complaint dismissed. He explained that it is within the prison administration’s discretion to determine whether departure of the guards created a sufficient security risk to require limited keeplock. Since the keeplock was a “one-time occurance [sic] ... prompted by the guards attending a funeral service,” he found that sufficient justification existed for the administrative decision made at Great Meadow.

The Magistrate’s Report-Recommendation was delivered to plaintiffs on September 28, 1981. Nelson filed an Affirmation in Opposition to the Report on October 2, along with a Demand for Jury Trial. Nelson’s objections to the Report amounted to a conclusory denial of “each and every justification given” for dismissal, and repetition of the basis of his complaint, i.e., that plaintiffs were not afforded due process before being locked-down for the day. On October 8 Anderson filed a motion to compel the defendant to answer proffered interrogatories; his papers did not contain objections to the Magistrate’s Report. Chief Judge Munson reviewed the entire record and issued an order on October 20 approving the Magistrate’s Report-Recommendation, granting defendant’s motion to dismiss the complaint and dismissing all other motions as moot. Anderson timely filed a notice of appeal and a motion for leave to proceed in forma pauperis and for appointment of counsel on appeal. In the latter document he alleged that he was unable to respond to the Magistrate’s Report because he was “ ‘in transit’ as a Federal Prisoner.”

II

The only legal issue is whether the district court properly dismissed the complaint. A complaint should not be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45 — 16, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). A 12(b)(6) motion is addressed to the face of the complaint; a court ruling on a 12(b)(6) motion that wishes to consider matters outside the complaint in determining whether to dismiss may treat the motion as one for summary judgment under Rule 56, provided the parties are given notice that summary judgment is being considered and afforded reasonable opportunity to present pertinent material in response. See Fed.R.Civ.P. 12(b).

Looking just at the allegations of the complaint we cannot say that plaintiffs could under no circumstances prove that their constitutional rights were violated. If the Commissioner had personally singled plaintiffs out and for no reason whatever locked them in their cells for a day, they might be able to sustain their claim. The district court did not, however, view the complaint in a vacuum when it issued its dismissal order. Even though the October 20 order approves the Magistrate’s Report which cites Rule 12(b)(6) as a recommended basis for dismissal, Judge Munson explicitly mentions that he made his ruling “[a]fter careful review of all the papers” contained in the record. Since he apparently did not notify the parties that he intended to treat the 12(b)(6) motion as one for summary judgment, and although no specific rule is cited as the ground for the district court’s dismissal, we think the clear import of the procedure followed below is that the court intended to dismiss this pro se complaint as frivolous under 28 U.S.C. § 1915(d) (1976). See Williams v. Field, 394 F.2d 329, 330 (9th Cir.) (though the district court didn’t express the basis for its dismissal, the Ninth Circuit found that § 1915(d) was the apparent ground), cert. denied, 393 U.S. 891, 89 S.Ct. 213, 21 L.Ed.2d 171 (1966).

Due to substantial recent increases in the volume of prisoner civil rights cases filed in the federal courts and special considerations attaching to such cases, many districts, including the Northern District of New York, follow adaptations of a widely recognized procedure recommended for the handling of prisoners’ pro se petitions. See generally Federal Judicial Center, Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts (1980) (hereinafter “FJC Report”). Standardized forms designed to assist the pro se complainant in stating his claim in a complete and comprehensible manner and in providing appropriate information for determination of in for-ma pauperis (IFP) status are used. Id. at 45 et seq. Magistrates perform the initial screening and processing of the forms. Id. at 49, 51-53; see also 28 U.S.C. § 636(b) (1976 & Supp. IV 1980); N.D.N.Y.R. 43(c)(4).²

The preferred practice is for the Magistrate first to consider the petitioner’s economic status and decide whether to grant leave to proceed in forma pauperis. FJC Report, supra at 54, 57-58. If leave is granted, the Court/Magistrate should then determine whether dismissal is appropriate under 28 U.S.C. § 1915(d). Id. at 58.³ In districts where the services of a Magistrate are utilized, the Magistrate submits a report and recommendation to the judge indicating his suggested disposition; the report is also mailed to the plaintiff and all parties who have been served. See 28 U.S.C. § 636(b); N.D.N.Y.R. 43(c)(4); FJC Report, supra at 59, 70. The parties then have ten days in which to file objections, see FJC Report, supra at 59, and the district judge makes a de novo determination regarding objected to portions of the report before rendering a final decision on dismissal. 28 U.S.C. § 636(b).

While it is proper, see Fries v. Barnes, 618 F.2d 988, 989 (2d Cir.1980); FJC Report, supra at 73, and even recommended that a decision to dismiss under § 1915(d) be made prior to issuance of process in order to spare the defendant the expense and inconvenience of answering a frivolous complaint, FJC Report, supra at 59, our Court has often admonished that extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond, see, e.g., Fries v. Barnes, 618 F.2d 988, 989 (2d Cir.1980); Ron v. Wilkinson, 565 F.2d 1254,1257 (2d Cir.1980); Lewis v. New York, 547 F.2d 4, 5 (2d Cir.1976); Cunningham v. Ward, 546 F.2d 481, 482 (2d Cir.1976). Thus, sua sponte § 1915(d) dismissal may occur and is in some cases preferable after service of process and expansion of the record. Brown v. Schneckloth, 421 F.2d 1402, 1403 (9th Cir.) (per curiam), cert. denied, 400 U.S. 847, 91 S.Ct. 95, 27 L.Ed.2d 85 (1970); Boruski v. Stewart, 381 F.Supp. 529, 533 (S.D.N.Y.), aff’d sub nom, Boruski v. United States, 493 F.2d 301 (2d Cir.1974). Moreover, expansion of the record protects the unskilled litigant and enables the court to make an informed decision regarding the merits of an action by reference to the reality of the situation rather than by speculating as to the nature of the claim. Harvey v. Clay County Sheriff's Department, 473 F.Supp. 741, 745 (W.D.Mo.1979). Therefore, unless frivolity is facially apparent, it is “incumbent upon the court to develop the case and to sift the claims and known facts thoroughly until completely satisfied either of its merit or lack of same.” Jones v. Bales, 58 F.R.D. 453, 464 (N.D.Ga.1972), aff’d, 480 F.2d 805 (5th Cir.1973), cited in Boston v. Stanton, 450 F.Supp. 1049, 1053-54 (W.D.Mo.1978). At whatever point it is clear that merit is lacking, the IFP action should be dismissed as frivolous under § 1915(d). See id.

Review of the facts recited above reveals that the district court in this case carefully followed the outlined recommended procedure. In light of this and our analysis infra of the appropriateness of § 1915(d) dismissal, we are persuaded that the lower court dismissed this case as frivolous under § 1915(d).

Ill

Title 28 U.S.C. § 1915(a) (1976) permits federal courts to allow the commencement of actions without prepayment of fees by persons unable to afford the cost of litigation. In order to ensure that this privilege will not be abused, Congress provided in § 1915(d) that IFP proceedings may be dismissed by the court sua sponte “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” See Fletcher v. Young, 222 F.2d 222, 224 (4th Cir.) (per curiam), cert. denied, 350 U.S. 916, 76 S.Ct. 201, 100 L.Ed. 802 (1955).

Many cases have expressed the view that the federal district courts are vested with especially broad discretion to deny state prisoners the privilege of proceeding IFP in civil actions against officials of the institution in which they are incarcerated. See, e.g., Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.1979) (per curiam); Milton v. Nelson, 527 F.2d 1158, 1160 (9th Cir.1976); Daye v. Bounds, 509 F.2d 66, 68 (4th Cir.), cert. denied, 421 U.S. 1002, 95 S.Ct. 2404, 44 L.Ed.2d 671 (1975); Conway v. Fugge, 439 F.2d 1397 (9th Cir.1971) (per curiam); Williams v. Field, 394 F.2d at 330-32; Shobe v. California, 362 F.2d 545, 546 (9th Cir.), cert. denied, 385 U.S. 887, 87 S.Ct. 185, 17 L.Ed.2d 115 (1966); Holsey v. Bass, 519 F.Supp. 395, 406 (D.Md.1981); Boston v. Stanton, 450 F.Supp. at 1053. One often-quoted case discusses the rationale for this conclusion:

Persons proceeding in forma pauperis are immune from imposition of costs if they are unsuccessful; and because of their poverty, they are practically immune from later tort actions for “malicious prosecution” or abuse of process. Thus indigents, unlike other litigants, approach the courts in a context where they have nothing to lose and everything to gain. The temptation to file complaints that contain facts which cannot be proved is obviously stronger in such a situation. For convicted prisoners with much idle time and free paper, ink, law books, and mail privileges the temptation is especially strong. As Justice Rehnquist has noted, “Though [an inmate] may be denied legal relief, he will nonetheless have obtained a short sabbatical in the nearest federal courthouse.” Cruz v. Beto, 405 U.S. 319, 327, 92 S.Ct. 1079, 1084, 31 L.Ed.2d 263 (1972) (dissenting).

It is plain to this Court that courts need an extra measure of authority when faced with actions proceeding in forma pauperis — particularly where the action is brought by a prisoner seeking damages. And it is this court’s conclusion that Congress has granted that extra authority by enacting 28 U.S.C. § 1915(d).

Jones v. Bales, 58 F.R.D. at 463-64. Prisoners proceeding IFP are not bound by the usual financial restraint on unwarranted litigation, and their expenditure of time in preparation for a lawsuit is often a relief from the tedium of prison life.⁴ FJC Report, supra at 2. We keep firmly in mind the fact that the benefit of § 1915 is a privilege, not a right, Williams v. Field, 394 F.2d at 332, and that the court’s “extra measure of authority” in dealing with § 1915 actions is necessary because frivolous suits unduly burden the courts, sometimes obscuring meritorious claims, occasion significant expenditures of public monies, and are a means by which plaintiffs can use the federal government to harass individual defendants. Holsey v. Bass, 519 F.Supp. at 406.

In light of these special considerations we must analyze what is meant by “frivolous” as that term is used in the statute. Some courts choose to equate the notion with the standard for dismissal under Rule 12(b)(6). See, e.g., Montana v. Commissioners Court, 659 F.2d 19, 21 (5th Cir.1981) (per curiam), cert. denied, 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982); Boyce v. Alizaduh, 595 F.2d 948, 952 (4th Cir.1979). Others adopt the view that an action is frivolous if the plaintiff’s realistic chances of ultimate success are slight. Sims v. Zolango, 481 F.Supp. 388, 391 n. 1 (S.D.N.Y.1979); Boston v. Stanton, 450 F.Supp. at 1053; Clark v. Zimmerman, 394 F.Supp. 1166, 1178 (M.D.Pa.1975); Louisiana ex rel. Purkey v. Ciolino, 393 F.Supp. 102, 106 (E.D.La.1975); Jones v. Bales, 58 F.R.D. at 464; see also Urbano v. Sondern, 370 F.2d 13, 14 (2d Cir.1966), cert. denied, 386 U.S. 1034, 87 S.Ct. 1485, 18 L.Ed.2d 596 (1967). One authority finds refuge in language used in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), which employs a definition akin to that used in Rule 12(b)(6) dismissal. See FJC Report, supra at 61.

We think that those cases which adopt the Anders or Rule 12(b)(6) standard have overlooked significant distinctions between the considerations underlying the Federal Rules of Civil Procedure and those which gave rise to § 1915. The notice pleading principles embodied in Rules 8 and 12 are intended to remove technical obstacles impeding access to the federal courts. This liberal approach contemplates litigants whose time and funds are limited. Boston v. Stanton, 450 F.Supp. at 1053; Jones v. Bales, 58 F.R.D. at 464. Section 1915, on the contrary, is a statute that creates affirmative conditions which must be met in order to receive a special benefit not granted to all — free access. As such it demands that attention be paid to the conservation of scarce judicial resources and the fundamentally different nature of much IFP litigation. It is closely analogous to other statutes which call for more stringent pleading standards than those contained in the Federal Rules, such as, for example, the habeas corpus statute, 28 U.S.C. § 2255 (1976). These statutes, like § 1915 and unlike the Federal Rules, are rooted in considerations of economy and protection. Harvey v. Clay County Sheriff's Department, 473 F.Supp. at 743-44; see also Jones v. Bales, 58 F.R.D. at 463-64.

In light of these distinctions we reject the notion that the Rule 12(b)(6) standard is the sole basis for dismissal under § 1915(d). The court in Boruski v. Stewart, 381 F.Supp. at 533, scanned the case law generally and noted § 1915 dismissals where the plaintiff is engaged in repeated litigation of issues already determined, the allegations of the complaint are “beyond credulity,” the complaint fails to state a claim upon which relief may be granted, or there is little chance of success on the merits in light of various defenses which may be asserted. We think the concept of “frivolous” embodied in § 1915(d) is broad enough to support a dismissal on any of these grounds.

IV

We consider the entire record in this case⁵, including defenses which have been or could be raised, see Urbano v. Sondern, 370 F.2d at 14; Holsey v. Bass, 519 F.Supp. at 408-11; Clark v. Zimmerman, 394 F.Supp. at 1178; Louisiana ex rel. Purkey, 393 F.Supp. at 108, 109-10; Boruski v. Stewart, 381 F.Supp. at 533-35, in order to assess appellant’s chances of success and to determine whether the district court abused its discretion, see Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir.) (per curiam), cert. denied, 423 U.S. 896, 96 S.Ct. 198, 46 L.Ed.2d 129 (1975), in dismissing the complaint. We note that leniency accorded pro se plaintiffs when attempting to understand the claims raised in often inartfully worded complaints does not create a predisposition toward such plaintiffs in the substantive determination of whether their claims are frivolous. Collins v. Cundy, 603 F.2d at 827-28; Serna v. O’Donnell, 70 F.R.D. 618, 621 (W.D.Mo.1976).

To begin, plaintiffs have not alleged any facts which might give rise to an equal protection claim; all inmates were keep-locked on an institution-wide basis. Second, prisoners need not be afforded “procedural due process” — notice and a hearing — in every situation in which they are locked in their cells. For example, N.Y. Admin.Code tit. 7, § 251.6(f) (1979) provides that “all inmates ... in a facility may ... be confined in their cells ... for the duration of any period in which the safety or security of the facility is in jeopardy.” In Gilliard v. Oswald, 552 F.2d 456, 459 (2d Cir.1977), we ruled that where security is in doubt, the determination of what measures to pursue must be entrusted to the discretion and judgment of the prison superintendent. In the same vein, the Supreme Court recently remarked that “[t]he wide range of ‘judgment calls’ that meet constitutional and statutory requirements are confided to officials outside the Judicial Branch of Government.” Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447 (1979). See generally id. at 544-48, 99 S.Ct. at 1876-78.

The standard of review where there is a challenge to the sufficiency of the basis for an emergency response must give the benefit of the doubt to the responsible administrative officials because it is unfair if not simply impossible for persons foreign to day-to-day involvement with the prison community later to reconstruct the conditions present at the time the emergency arose. Gilliard, 552 F.2d at 458 & n. 2. Prison authorities necessarily must be allowed wide discretion in the use of confinement for the purpose of protecting the safety and security of the prison and its general population. Id. at 459; United States ex rel. Walker v. Mancusi, 467 F.2d 51, 53 (2d Cir.1972). Thus, the prison superintendent’s judgment in ordering confinement should prevail “absent a clear showing of gross abuse.” Gilliard, 552 F.2d at 459.

No gross or even minimal abuse is present in this case. The facts reveal that a substantial number of guards intended to be absent from duty on the day of the funeral. Consequently, defendant was faced with balancing the potential for danger due to insufficient staffing at the Great Meadow facility against the inconvenience caused to plaintiffs by being confined to their cells for 12 hours on a single day. Whatever deprivation plaintiffs may have suffered does not rise to the level of a constitutional violation. A practice may be undesirable, yet still not so abusive as to violate a constitutional right. Sweet v. South Carolina Department of Corrections, 529 F.2d 854, 859 (4th Cir.1975); Scellato v. Department of Corrections, 438 F.Supp. 1206, 1207 (W.D.Va.), appeal dismissed sub nom, Scellato v. Zahradnick, 565 F.2d 158 (4th Cir.1977).

Anderson’s appellate brief seems to imply that the Commissioner created the emergency situation in question by issuing a directive which gave all correction officers paid time off to attend the funeral. Government counsel argue that emotions were running at such a high pitch that the officers would have taken the day off with or without permission. We note that the defendant as an administrative officer is protected by the qualified defense of immunity available to officers of the executive branch of government who carry out the responsibilities of their office in good faith. See Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 1691-1692, 40 L.Ed.2d 90 (1974) . The dual subjective-objective test of good faith in this context requires that in order to be immune from damage actions the executive official must have had a good faith belief that he was acting properly and there must have been reasonable grounds for that belief in light of all the circumstances as they reasonably appeared at the time. Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975) ; Scheuer v. Rhodes, 416 U.S. at 247-48, 94 S.Ct. at 1691-1692; McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978). We think that there were reasonable grounds for the Commissioner’s belief that he acted properly, and that the district court safely relied on these factors. Absent more than plaintiffs’ bare assertion that defendant issued his directive with actual malice or in ignorance or disregard of settled, indisputable law regarding the constitutional rights of his charges, the immunity defense applies. See Wood v. Strickland, 420 U.S. at 321, 95 S.Ct. at 1000. Plaintiffs failed to indicate on what basis they concluded that the Commissioner violated this standard. In addition, the fact that officials acting for the defendant did not order keeplocks in the vast majority of the State’s prisons lends support to the conclusion that the defendant was not acting with malice or in disregard of the law.

Plaintiffs’ reasonable chance of ultimate success on the merits of their claim is slight. This action is therefore frivolous under 28 U.S.C. § 1915(d), and the district court did not abuse its discretion in dismissing the complaint. We affirm.

1 . Mrs. Payant’s husband was also a New York State correction officer, serving at the Clinton Correction Facility.

2 . In the Northern District prisoner civil rights complaints are deemed referred to the Magistrate upon delivery to him, without the need for individual referral orders in each case, see N.D. N.Y.R. 43(c)(4)(c), as is the recommended practice, see FJC Report, supra at 52.

3 . It is proper procedure to allow an in forma pauperis filing when the IFP papers are facially sufficient and then dismiss per § 1915(d), even if the court had earlier determined that § 1915(d) dismissal was warranted. Forester v. California Adult Authority, 510 F.2d 58, 60 (8th Cir. 1975).

4 . Appellant is a prime example. During the brief period this action was before the district court he had six cases pending at the trial level and one awaiting appellate review. His familiarity with motion practice doubtless surpasses that of some members of the Bar.

5 . Court records in other actions may be considered as well. Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir.) (per curiam), cert. denied, 423 U.S. 896, 96 S.Ct. 198, 46 L.Ed.2d 129 (1975); Conway v. Oliver, 429 F.2d 1307, 1308 (9th Cir. 1970) (per curiam); Williams v. Field, 394 F.2d at 332; United States of America ex rel. Masucci v. Follette, 272 F.Supp. 563, 565 (S.D.N.Y.1967).