Robert Procup v. C. Strickland

PROCUP, Plaintiff-Appellant, Robert STRICKLAND, al., et

C.

Defendants-Appellees.

No. 83-3430. Appeals,

United States

Eleventh Circuit.

July III, Arnold, Winegeart,

Lamar B. Strat- Booth, Jacksonville, Fla., ford plain- & tiff-appellant. impair- that the ment, impairment claimant suffers from a severe sidered disabled if the is se- inquiry enough preclude focuses on the level of performing severi- vere her from

ty. severity equals If past precludes or exceeds that of an her relevant work and if it her impairment Appendix performing any listed in the claimant is other work. See 20 C.F.R. not, disabled. If will claimant be con- 404.1521. Gen., Kowalchyk, Atty. Dean C. Asst. in the Jacksonville Division of the Middle Tallahassee, Fla., defendants-appellees. alone, District of Florida counting suits

filed in other federal and state courts. Procup’s Most of se, suits pro have been civil actions under GODBOLD, 1983. None has reached the Judge, § Before Chief RO stage merits; of trial NEY, on the TJOFLAT, HILL, FAY, most have VANCE, been frivolous. Procup KRAVITCH, often has filed re- JOHNSON, HATCHETT, peated claims and comply failed to CLARK, ANDERSON and Circuit Judges,* court procedures. rules and His **, and TUTTLE Senior Judge. Circuit long are rambling. ignored He has CORRECTED repeated warnings and admonitions from the district court. PER CURIAM: en to consider took this case banc We question There is activi- injunction restricting propriety of an ties call for some curtailment. The district Procup, prisoner, Florida Robert injunction against court filing any his com- filing any with the district court un- case plaint with the court without the aid of an attorney admitted to less submitted an attorney attempt is an to reduce the num- Procup the court. practice before ber of frivolous lawsuits without fore- (M.D.Fla. Strickland, F.Supp. closing truly in- meritorious claims. The (11th Cir.1985), 1983), rev’d, 760 F.2d 1107 junction premise was based on the if (11th Cir.1985). vacated, 760 F.2d 1116 claim, arguably had an meritorious brought proceedings that the issue be- attorney he would be able to obtain an fully forth in those fore this Court are set handle it for him. The distriсt noted court court’s opinions.1 We hold that the district every “virtually because action” filed overbroad, but that the dis- injunction was by Procup brought pursuant had been authority impose serious trict court has 1983, the, provision U.S.C.A. for an attor- § Procup’s bringing matters restrictions on ney’s in 42 fees award U.S.C.A. § attorney. the court without an provide “ample incentive for mem- increasingly large private bers bar Procup, serving a life sen who appears to handle a claim which to be meri- degree, in the first has tence for murder torious.” 567 at 160. The district engaged ridiculously extensive availability legal noted the also for Middle District in the District Court indigent assistance to inmates from Florida Florida, fully set out the district Services, Legal Institutional Inc. From F.Supp. at opinion. court’s 148-51. these, the district court concluded: 1983, Procup had filed 176 cases As of June * U.S.-, (1986); participаte did not Honorable J.L. Edmondson disposition ap- Hall, of this in the consideration United States v. Cir. peal. therefore, 1972). Procup, standing to seek Oliver, injunction. In re review of ** Tuttle, P. Senior Circuit Honorable Elbert (3d Cir.1982) (entertaining an participate Judge, in the consider- has elected to pursuant from an almost identical order to 28 disposition of this cause. 28 U.S.C.A. ation 1292). Injunctions U.S.C.A. are construed § 46(c). § broadly carry out the intent of the dissent, clearly Contrary Judge Tjoflat’s prevent the Court which in this case was to injunc complaints construes the district court order as an further without an attor- modified, tion, ap effective vacated or unless ney. The district court stated in its first sen- 1292(a)(1). pealable under 28 U.S.C.A. Al § had an "Order to Show tence that it Cause, entered though injunction, Procup, a not named in the thirty days permitting plaintiff in which entered, party been to the suit which it hаs why the Court should not enter to demonstrate clearly thereby might possibly affected filing any injunction prohibiting him from by contempt sought plead if he to file reached pleadings in the courts of this district.” further Injunc ings in violation thereof. 43A C.J.S. Cf. F.Supp. at 146-47. (1978); MacKay, tions Waffenschmidt Cir.1985), attorney’s duties under Rule This does not mean that the

[T]he district court Fed.R.Civ.P. and the Code of employing Ethics—to was incorrect in injunctive re- good file suit where there lief. The district fully justified court was grounds support authority and within its pleading entering injunc- —will tive restrictions Procup. preliminary serve as an invaluable Such ac- necessary prudent tion is protect screening mechanism will shield which litigants of all system. federal Procup’s the Court from well-document- proclivity barrage ed the Court with years Recent explo- have witnessed an frivolous and ill-conceived lawsuits. prisoner litigation sion оf in the federal Additionally,

... the Court will be en- courts. rights petitions From 218 civil of brought sured that'claims before it on to federal courts in there 18,034 behalf of have been consci- were such suits in 1984. Annual entiously Report being filed. scrutinized Director of the Administra- obviously This has tive of not occurred in the Office the United States Courts for past. the Twelve Month Period Ended June 1984, at 142-43. According to a 1979 (footnote omitted). at 161 Id. study, prisoner of filings 80% 95% judgment, however, In this Court’s brought pauperis. Turner, forma requirement only file suits When Prisoners A Study Sue: Prison- through attorney may well foreclose er Section 1983 Suits in the Federal him private from suits at all. A Courts, Harv.L.Rev. record, attorney, knowing Procup’s track prisoner litigant may possess several might unwilling well be devote the time advantages distinct over the ordinary liti- necessary through and effort to sift Proc- gant: time to multiple draft and prolonged up’s generally frivolous claims to see if pleadings; ability proceed in forma there is one sufficient merit to under- pauperis escape any and thus financial ob- legal representation. legitimate take A confronting stacles litigant; the usual go claim could well undiscovered. More- availability of free materials which the over, Procup’s shotgun litigation due to provide prisoner, state must including techniques, attorneys in legal services paper postage. result, As a there is already office have found themselves as virtually prisoner’s filing no cost to a re- in Procup’s rambling pleadings. defendants peated, frivolous lawsuits. This not attorney would deter an from In order adequately to more handle this representing client, such a difficult but also cases, upsurge of the federal courts have that, possibility raises the due to intra-of- adopted procedures various administrative interest, fice legal conflicts of services designed process. to streamline the Some attorneys repre- would ‍​​‌‌‌‌​​‌​​‌​​​‌‌‌​‌‌‌‌​​​‌‌​​‌‌​‌‌​​‌​‌​​​​‌​​‌‍be unavailable to procedures of these are found the in Procup. premise sent With the that Proc- itself, statute up simply get unable to attor- adopted 1915. Others have been ney him, represent injunction then recommendations contained the so-called effectively enjoins Procup filing any Report. Aldisert See Federal Judicial Cen- suit. The district court neither intended ter, Recommended Procedures Han- this any way result nor indicated in dling Prisoner Rights Civil Cases in the injunction appro- an absolute would be (1980). Many Federal Courts courts have priate. An absolute bar developed sophisticated procedures involv- filing any suit in federal court would be ing the attоrneys, magistrates, staff We, therefore, patently unconstitutional. clerks, judges try law to sort out injunction vacate the and remand for con- suits, from the mass of frivolous the meri- will, sideration of such modification as as torious ones. possible, much pur- achieve the desired poses encroaching without Occasionally con- particularly pris- abusive oner, taking stitutional to court access. advantage unique of his sitúa- tion, along flood of claims arising will come with a claims from the same circumstances;2 set of designed positions factual to either harass those authority grind or to the wheels of —required litigants accompany all fu- system No matter judicial to a halt. how ture with affidavits proce- certifying efficient a administrative court’s that the claims be- ing novel, be, raised are litigant up- subject one files dures when contempt for false swear- day, the wards of a lawsuit a claims ing;3 necessarily Every litigants suffer. filed, how frivolous lawsuit no matter litigant —directed the to attach to future repetitious, requires complaints the investment a list of all cases time, previously 'involving filed is re- whether same, similar, or related clerk, cause initially by viewed a law a staff action, and to send an extra attorney, magistrate, judge. or the copy of pleading each filed to devising objec- to attain the methods the law clerk of the chief curtailing activity of such tive of a judge district;4 of the however, prisoner, carefully courts must litigant —directed the to seek leave of legitimate observe the fine line between filing pleadings impermissible restraints and an restriction any pending new or law- prisoner’s on a constitutional of ac- 5 suit; to the courts. courts have cess Various —permitted prisoner litigants abusive to employed approved variety injunc- a file in tive devices. alleging claims actual or bring frequent As to who harm; physical threatened claims, repetitious courts have: requiring payment of a —enjoined prisoner litigants from relit- bring fee to

igating claims;6 specific, claims or States, 114, (1st Cir.), denied, King, 2. Harrelson v. United 613 F.2d 116 626 F.2d 1075 cert. 829, (5th Cir.1980) Green, 96, curiam); (1980); (per In re 449 U.S. 101 598 S.Ct. 66 L.Ed.2d 34 1126, (8th Justice, 1979) (era banc); Department Gordon v. United States F.2d 1128 Cir. Hill v. Estelle, (1st Cir.1977) curiam); (S.D.Tex.), aff'd, (per F.2d F.Supp. 558 618 Brown 423 690 543 Gibson, (W.D.Mo.1983); (5th Cir.1976); F.Supp. parte Tyler, 571 1075 F.2d 754 Ex 70 Grecu, (S.D.Ind. (E.D.Mo.1976); F.Supp. Richcreek v. 612 111 F.R.D. 456 see also Salahuddin 1985); Goodwin, F.Supp. (S.D.N.Y.1984) (de- Hanson v. Coughlin, F.Supp. 432 853 591 353 (W.D.Wash.), dismissed, appeal 566 F.2d clining impose injunction). 1181 to (9th Cir.1977); McCormack, Rudnicki v. 210 Nations, 1497, Urban v. United 768 F.2d 1500 (D.R.I.1962), dismissed, F.Supp. 905 372 (D.C.Cir.1985) curiam) (per (nonprisoner); 226, 679, U.S. 83 S.Ct. 9 L.Ed.2d 714 Warden, (7th Cir.), Green v. F.2d 364 cert. 699 courts, imposing A number of other while not 960, 2436, denied, 461 U.S. 103 S.Ct. case, injunctions particular recоg- have (1983) Green, (prisoner); In re 1321 669 F.2d power nized the courts’ to enter this sort of 779, (D.C.Cir.1981) curiam) (per (prisoner); 787 Gabriel, (1st injunction. Sires v. 748 F.2d 49 Kincheloe, (E.D.Wash. F.Supp. Demos v. 563 30 Cir.1984); Carter v. United 733 F.2d 735 1982) (prisoner). - (10th Cir.1984) denied, curiam), (per cert. U.S.-, 915, (1985); 105 S.Ct. 83 L.Ed.2d 928 White, 1054, (8th 4. Green v. 616 F.2d 1056 Cir. (5th Cir.1983) King, Howard v. 707 F.2d 215 1980) curiam). (per curiam); (per Byron, Kondrat v. ‍​​‌‌‌‌​​‌​​‌​​​‌‌‌​‌‌‌‌​​​‌‌​​‌‌​‌‌​​‌​‌​​​​‌​​‌‍(N.D.Ohio 1984). Gatto, (2d 1985) 5. Abdullah v. 773 F.2d 487 Cir. Green, Nations, (5th curiam); (per Apr. In re No. Cir. A Urban v. United 768 F.2d 81-1186 Unit 27, Carlson, 1497, 1981) (D.C.Cir.1985) curiam); (appendix (per to Green v. In re 285, denied, A), (2d Cir.1984), Martin-Trigona, Cir. Unit cert. 737 F.2d 1254 (1981)); denied, -, 70 L.Ed.2d 623 cert. (8th Cir.1981) Warden, Hoff, (per (1986); Peck v. 660 F.2d 371 L.Ed.2d 782 Green v. curiam); White, (7th Cir.), Green v. 616 F.2d 1054 Cir.1980) curiam). (per (1983); Oliver, In re Green, (3d 1982); Cir. In re Several have ban courts held that a total on (D.C.Cir.1981) curiam); filings by particular litigant F.2d 779 Pavilonis all IFP a as a sane- filings by par- prove ineffective, —limited the number old devices judi- inmate; ticular and7 ciary respond imaginative with new techniques designed protect the court injunctions prohibiting —entered litigants. access of Taylor See acting all v. Gib- abusive son, jailhouse writ as a writer or (5th Cir.1976). We lawyer for other inmates.8 suggestion make no as the combination of restrictions might be appropriate We do here intend indicate how this injunc- pass treat above and do not constitutionality case, particular tions but them cite given such limitation for a Nei- case. examples of how other courts have handled suggest ther do we precise of an form problem. Other restrictions which injunction. procedures, instance, Some might attempting considered a court directed the officers of the court problems deal created litigants rather than the themselves.9 litigant such as include: pages —limitation of the number of to a There should be little doubt plead- and other jurisdiction district court has the ings; protect itself the abuses liti —requiring plaintiff to file an affidavit gants like visit it. Federal setting forth attempts what courts have both the power inherent he has made to obtain an at- obligation protect constitutional their him; torney represent jurisdiction impairs conduct which pleadings —limitation of further without their to ability carry out Article III func court, order of the com- after re Martin-Trigona, In tions. 737 F.2d plaint has been filed. 1254, (2d Cir.1984), denied, cert. 1261-62 — U.S.-, 807, list is to 106 S.Ct. 88 This intended be neither exhaus- L.Ed.2d 782 (1986).10 limiting. tive nor As develop new ideas The fact that Green, 779, impermissible. ings. for (quoting abuse is Abdullah v. Id. In re 787 Gatto, (2d Cir.1985) curiam); (per (D.C.Cir.1981) (per curiam)). 773 F.2d 487 (9th Murphy, v. Franklin 745 F.2d 1221 Cir. 1984); Carter v. United 733 F.2d 735 Goodwin, (W.D. F.Supp. 8. Hanson v. 432 853 (10th Cir.1984) curiam), denied, (per cert. Wash.), dismissed, (9th U.S.-, 915, (1985); 83 L.Ed.2d 928 1977); Wyrick, F.Supp. Cir. (W.D.Mo.1976), Green v. 428 732 779, Green, (D.C.Cir.1981) In re F.2d 669 786 Green, In sub nom. re 586 aff’d curiam). 1247, (8th Cir.1978), F.2d cert. 440 1249, Oregon, F.Supp. 7. See Franklin v. (D.Or.1983) (limiting to six IFP Court, case, previous 9. This a has instructed filings per year). approved The Ninth Circuit strictly its clerk to file that do not injunction, qualification: but with a "If a comply applicable procedure. with rules of request filing is made for additional cases (11th Pettigrew, Aug. Carter v. No. 84-8411 Cir. court, beyond prescribed by the number 24, 1984) order) (order (unpublished authoriz- opportunity Franklin must be afforded to ing inspect court clerk of to documents received showing filings make a to six limitation litigants compliance from certain for with Fed. prejudicial because inclusion of these claims R.App.P. to refuse file if 3 and to documents existing amendment of his claims is not judgment speci- appealed order or from is not made, possible. showing If such a the district fied). Another court ordered a United court must amend its order. This will avoid the constitutionally questionable Magistrate filings States to all screen future to pre- conclusive filing was determine whether the in furtherance subsequent sumption that all of Franklin’s sub- deluge of a bad faith effort to Green courts. or missions frivolous maliсious.” Franklin (W.D.Mo.1979). Camper, (9th Cir.1984). Murphy, addition, filings beyond In six, for the initial Green, re required See also In No. 81-1186 Cir. seek Franklin would to leave of court, 1981) Apr. (appendix certifying Unit A Carlson, to the claims he wished to Green A), present Cir. Unit were new claims never before raised disposed of on merits a federal court. denied. certification, (court’s (1981)) Upon certify general supervisory power failure false docket); subject contempt proceed- Franklin would be to control Harrelson v. United harm; ing physical a actual or may have failed to state threatened in this case impact claim is of no on justiciable requiring payment federal aof fee injunctive enter relief power claims; court’s bring other litigant. The a recalcitrant every respect agree In I with the single responsibility prevent has a majority opinion. unneсessarily encroaching litigants from machinery needed others. judicial on TJOFLAT, Judge, dissenting: Circuit a bar to the a frivolous lawsuit Were the court jurisdiction, inherent court’s majority’s opinion compel- recites powerless to act even would be ling problems litigants, tale of the abusive threat- frivolous lawsuits which flood of including Procup, pose can for the federal to a stand- bring judicial ened to business compelling An courts. even more version still. opinion. can be found in the district court’s eagerness In its to sanction means injuc- design the kind of do not here We abuses, however, these curb appropriate this case. tion that would be neglects principle time-honored necessarily is re- discretion Considerable appeals court of is constrained to decide court. can be posed in the district appealаble decisions of the district severely he file restricted as what applications majority’s opinion court. The fails to dis- and how he must behave his arose, just He cannot be com- judicial relief. cuss how this case what actions pletely foreclosed from access were taken the district and how and the injunction court. The is vacated appeal. case came this court on remanded for the district court to fact, case is scarcely opinion ac- order. appropriate consider an substitute knowledges question the order in arose in the context of an actual lawsuit. REMANDED. VACATED and procedural proper A consideration of the CLARK, concurring: history of this in the district court Judge, case Circuit apparent this court lacks makes it majority opinion concur with jurisdiction appeal. to entertain this opinion pages one reservation. 1072and 1073 lists limitations precondi- Procup, prisoner serving Florida a life right to the person’s of access tions sentence, litigation by filing a initiated this ones have been advanced court. Certain (1982) 42 U.S.C. 1983 action vari- § suggested and others are by other courts officials, complaining prison ous of his By listing limi- opinion. the these anew prison. in Attached to the com- treatment tations, impliedly authorizes the asserting plaint was an affidavit that Proc- long they applied not in their use so as prepay funds to the up lacked sufficient deny access to the courts. a manner to commencing an action fees associated The affidavit was in the district court. portion of the

I construe the underlined eligibil- on its face as to economic following as an unconstitutional sufficient limitation prоceed ity Procup proceed to to in denial of access and to allow forma pauperis pursuant 1915(a) to 28 pauperis, pursuant U.S.C.A. to 28 U.S.C. § forma 1915(d): (1982), complaint accordingly and the was § Ault, docket. placed on the See Watson prisoner litigants to permittpng] abusive Cir.1976).1 alleg- pauperis only claims file in forma statute, (1982). (5th Cir.1980) U.S.C. 1915 If an § Act, (All 1651(a)). curiam) § Writs with a demonstrates affidavit filed eligibility, requirements of section economic Prichard, City 1. In Bonner v. 1915(a) the district court must are satisfied and Cir.1981) (en banc), this court proceed to case. The then docket the court binding precedent adopted all decisions of as 1915(d) inquiry and dis- dictated section prior down to the former Fifth Circuit handed allegation poverty is the case if the miss Watson, October 1981. In the court discussed malicious. if the action is frivolous or untrue or procedure follоwed under the in to be forma noting pertains The district volume and court’s order the clerk to “addi- Procup’s previous litigation, pleadings is- tional cases or ap- nature of therein” and parently why preclude Procup an does not injunc- sued an order show cause from litigating fact, his current action.3 In prohibiting Procup not issue con- should trary finding frivolousness, any any pleadings in Proc- filing from further has, effect, up proceed attorney gener- ‍​​‌‌‌‌​​‌​​‌​​​‌‌‌​‌‌‌‌​​​‌‌​​‌‌​‌‌​​‌​‌​​​​‌​​‌‍obtained leave The Florida district court. pauperis, pursuant to 28 copy sent of the U.S.C. al’s office was show 1915(a) (1982),and the district court given has opportunity § order and cause case undertaken dismiss the as friv- present position Following its court. 1915(d) (1982). olous under 28 U.S.C. responses parties, both receipt § supra See note 1. opinion finding the district court issued an engaged had in extensive that It is bеyond dispute therefore attempt disrupt an abusive district court not rendered a final deci- functioning of the federal courts and appealable pursuant sion to 28 U.S.C. were warranted. The dis- that sanctions The district court’s order is sanction trict court concluded that the nec- interlocutory in nature and could Procup’s essary to curb abuses was an appealed if it constituted granting an order of the “enjoining” order the clerk court injunction 1292(a)(1) an within 28 U.S.C. § cases, any plead- additional (1982).4 necessary It is therefore to look cases, ings in those additional submitted beyond what district court’s order was unless additional cases or carefully called and consider true na- on behalf were submitted ture. Procup by attorney.2 The district court note, thing apparent first which is Procup’s rejected motions to reconsider its order, on thе face of the attempts “injunc- order and his to have the did not enjoin Procup's activities granted Procup tion” dissolved leave to way. The order was directed to the clerk pauperis. in forma court, “enjoining” of the the clerk from finding

The district court has made no filing non-complying A pleadings. careful brought by Procup reading this case is friv- of the court’s order discloses that attempt olous or malicious. As far as the record it does not to constrain indicates, Procup’s fact, section 1983 suit is conduct in In still fashion. order pending contemplates Procup probably court. The will district file of the 4. The full text order is follows: court’s order does not have attributes appeal- class of orders limited collateral PERMANENT INJUNCTION Opinion able with the entered under the doctrine of Cohen accordance here- Beneficial date, Corp., in on this Indus. Loan ADJUDGED the Clerk Court for the 93 L.Ed. where review immediate United District Court the Middle States Dis- separate independent matters neces- hereby permanently enjoined trict of Florida is sary important to secure interests. To the ex- filing any pleadings from additional or cases currently pre- tent the district court’s order is behalf therein submitted or on of Robert venting Procup filing any from new lawsuit that Procup, plead- unless such cases or additional pursue, right he has the to there is an available ings Procup are behalf therein submitted on whereby Procup contest mechanism can the va- by duly attorney practice a to licensed admitted lidity If of the district court’s order. and when before Court. this court, pursuant the clerk of the district to the Jacksonville, DONE AND ORDERED at Flor- question, in order refuses to file a future case or ida, June, day of this 17 1983. Procup pleading. could seek a writ manda- point Although disputed this was at one time ordering mus from the district court the clerk to appear parties, parties both now to con- accept papers. such and file If the district court apply pending cede order does not to Procup appeals, refuses to the writ issue language cases. The of the is consistent order validity of the district court’s order would be Strickland, with v. this conclusion. Cf. squarely this court. (11th Cir.1985) (panel 1110 n. inapplicable construe inclined to pending order as cases). not in a case such as this where a li- be invoked or without additional cases finding the com- has been no Because there attorney’s participation. censed question comply in failed to plaint expected such situation the district court In this case’s current requirements. rule’s arise, clerk of the court to it directed posture, we must assume that Contrary to filings. accept refuse imposed by the standard pleading satisfies opinion, in suggestion 11 and is not abusive.7 Rule 1, Procup not be p. n. ante order if he filed the court’s contempt of order, despite being The district court’s signed by an attor- pleadings not additional permanent injunction, entitled a effect pro- not order does ney the court’s because order, an administrative directed to merely instructs the filings; it hibit such court, governing way clerk of them.5 Nor to refuse clerk of the court handle its business in the future court will that, although not directed at it said can be particular litigant. Although en- as to one prevent- had the effect of Procup, the order case, this the order tered the context of The dis- litigating him this case. ing from no relation it. There is no bears thе order to enable did not issue trict court appeal from such an order where it take an it. On the the case before adjudicate it to effect the current case. As has no on inapplicable to was contrary, the order pointed previously, out the district court It is also clear pending cases. litigating prevented Procup against grant injunctive relief did not a conclusion. this case to beleaguered liti- the behest of precisely point arose in A situation Procup’s litigation tac- gants harassed (1st Cir.), King, Pavilonis sum, order was In the district court’s tics. denied, 96, 66 cert. granting of an in- not tantamount brought two L.Ed.2d Pavilonis appealable and is not junction in this case6 suits various officials civil interlocutory under 28 U.S.C. an order Boston schools. The connected with the 1292(a)(1)(1982). enjoining order Pa district court issued an question Although the order beаrs without new lawsuits vilonis imposed to a sanction and directed the clerk to some resemblance leave of court non-complyingpapers. could not be No pursuant accept to Fed.R.Civ.P. refuse to regard pend Rule which taken with as such. action was characterized refused complaints. The district court ing courts wide latitude to grants the district appealed. its order and Pavilonis litigant attorney submits to vacate or who sanction Appeals motion, dis- paper, could The First Circuit Court pleading, a baseless entering Procup, injunction instead MacKay, addressed 5. Waffenschmidt -, Cir.1985), the clerk of the court. It is an order directed to have, that the court at one of no moment time, and United States Procup, (5th Cir.1972), enjoining Hall, for it failed not to the considered cases, contrary. court’s to do so. In those the district injunctive and the issue had been violated order injunc nonparty present who violated was whether had found the If the district court frivolous, could history abetted in its violation complaint tion or aided and of abusive noted cases, sanction, contempt. imposed In both a clear litigation, and dis- be held a Rule injunctive appeal- had occurred. complaint, order have an violation we would missed the contrast, Procup, a licensed should without order. The dismissal of able would, course, pleading attorney, subject appellate to the clerk for tender a new review. nothing addition, prohib filing, Procup done would have the sanction im- could review we court’s order. if district court was posed ited the and determine the impose authority a sanction such within its out, points p. opinion imposition ante was majority’s the of the sanction and whether court’s discretion. appropriate exercise of the an court’s show cause order n. that the district situation, application of the why the Procup Even in that the court asked to demonstrate might prob- hearing future case raise enjoin sanction in some After not his conduct. should only appropriately reviewed giving that could be parties its con- lems and the matter from the controversy sideration, issuing arose. an when that actual the court decided appeal judgments the because final Such conduct missed should not and must not be not been entered in the lawsuits. Pa- had tolerated! at 1077 n. 4. King,

vilonis KRAVITCH, Judge, Circuit thereafter, dissenting: the dis- Sometime district court complaints Pavilonis’ and an missed us, properly Were this case before I point, judg- At final ensued. with join Judge opinion. would Johnson’s I rendered, aрpeals of ments court was agree Judge with major- Johnson that the review the district court’s able to dismissal opinion ity’s disturbingly arbitrary endorses appropriateness suits of the of guidelines limiting for access to the federal circuit, imposed. employ- sanction Our I in Judge Tjoflat’s proce- courts. concur ing legal principles, established should however, analysis, dural case not reach the same result reached the First time; properly us at accordingly, this Procup’s appeal should dis- Circuit. be If, future, in join I his dissent. missed, appellate review await Florida, of pur- clerk the Middle District disposition by final the district court.8 injunction, suant that court’s re- should pro to file Procup petition, fuse another se Accordingly, respectfully I must dissent Procup challenge then could the injunction judgment. court's by petitioning pur- for a writ of mandamus Appellаte suant Federal Rules of Proce- FAY, Judge, dissenting: Circuit 21(a). time, properly dure At such the case agreeing While with most of what is be would before this court for determina- opinion, I majority respectful- stated the merits. ly vacating injunc- dissent from the by the

tive order issued district court. JOHNSON, Circuit Judge, dissenting, in in great district court reviewed detail the TUTTLE, which Senior Judge, Circuit joins: history of some of the suits filed analysis sampling. with an an illustrative initially Though agreement with the carefully 148-155. After result, majority’s upon further reflection I weighing importance access to it, I join am unable to for find courts, placed the district court restrictions majority precisely protests does what it so filings. upon future I would affirm these loudly up that it does not: it sets decisional restrictions the reasons stated in that, together, criteria taken ef- have the thoughtful opinion. district court’s most completely foreclosing fect of the access prisoners to the federal courtroom. The person one No to deliber- precedent most obvious for the ately attempt destroy operations is, fear, approach Byron’s I Julia who— country. the courts of our New of the “whispering while will even T ne’er con- most are fundamental constitutional sent’—consented.”1 absolute. has “thumbed his nose” every authority guaranteed his contact. He All within access to games literally playing system. courts, Smith, federal Bounds v. case, necessary. Having I 8. Were to reach the merits of this means tic if concluded agree vacated, that the district court’s order must that this order must be matter, and, dicta, be initial vacated. As an the district goes opinion engages further quite proceeded irregularly by issuing court speculation type substantial as to what of sаnc- assessing order without first the com- might agreeable. tions The inclusion of a Second, plaint applica- in this case. the order’s laundry may possible list of sanctions that even tion to the most meritorious future present prob- or other constitutional presents problems. Finally, obvious the order particular is both lems situations ill-advised long-established principle violates the that a wholly unnecessary to the resolution this equitable exercising powers in- or its case. powers do so herent should in measured fash- ion, narrowly tailoring accomplish the relief to Juan, I, Byron, Don canto st. goal, proceeding its intended dras- more 1078 denied, 1081, 1446, 1491, 1494,

817, 821, 52 L.Ed.2d 72 104 S.Ct. 79 Beto, 319, 321, v. (1977); (1984). 405 92 Cruz U.S. L.Ed.2d 765 write dissent 1079, 1081, L.Ed.2d 263 and emphasize 31 opinion S.Ct. that the Court’s is based right unconditional though is-neither approves illegal restrictions on absolute, Supreme has clear- nor prisoner access to thе courts. It sanctions inferior federal courts ly forbidden the standing access restrictions alone deprive a interposing restrictions that might might unobjectionable or not be but effective, “adequate, and mean- prisoner of together which “taken so burdensome [are] Bounds, 430 U.S. at 822, ingful” access. deny litigant meaningful as to access McDonnell, v. 1495; 418 97 S.Ct. at Green, 786; Wolff Ab- the courts.” 669 F.2d at 2963, 2986-87, 539, 579-80, 41 U.S. dullah, 773 F.2d at 488. Purvis, (1974); Mitchum v. 935 L.Ed.2d First, limiting endorses abu- 1981). 647, (5th B 650 F.2d 648 Cir.Unit prisoner litigants filing “only sive [in question can that Robert Proc- There pauperis] alleging claims actual or forma judicial system up has abused the federal harm; physical requiring threatened frivolous claims. Ma- filing scores payment bring of a fee to ante, Nor can at 1070. Opinion jority ante, claims,” 1072, Majority Opinion at suggestion there be limiting filings by “the number of oper- of this modus discovery alone his particular given period inmate” in a time pose prob- andi or that it does not serious number, id. given See, e.g., Harrelson v. for the courts. lems guided The common thread that has all States, 114, (5th F.2d 116 United 613 Cir. appeals reviewing courts of restrictions curiam) (non-criminal); (per 1980) Castro States, 399, (1st on court access has been the firm convic 410 v. United 775 F.2d curiam) (non-criminal); Cir.1985) places upon the relevant statute (per Ab- Gatto, 487, (2d 773 courts responsibility F.2d the ultimate dullah curiam) (criminal); Cir.1985) (per Frank- determining which claims are frivolous and See, Murphy, lin v. F.2d 1231-32 e.g., Kemp, Johnson v. which are not. Green, Cir.1984) (criminal); curiam); In re (per (11th Cir.1986) F.2d 1570 curiam) (crimi- (per (D.C.Cir.1981) Mashburn, Phillips nal). curiam); Cir.1984) (per Urban v. United Nations, (D.C.Cir.1985) (per 768 F.2d 1497 quarrel I have no with the notion ‍​​‌‌‌‌​​‌​​‌​​​‌‌‌​‌‌‌‌​​​‌‌​​‌‌​‌‌​​‌​‌​​​​‌​​‌‍that curiam); Gabriel, 748 F.2d 49 (1st Sires v. may restrict, though inter- trial courts curiam); Cir.1984) (per re Martin-Tri dict, by prisoners court access who abuse (2d Cir.1984), 737 F.2d 1254 cert. gona, process. I un- adjudicatory Nor am — denied, -, S.Ct. minimize the mindful of the need to burden (1986); v. United Carter L.Ed.2d 782 any ilk. created frivolous lawsuits of (10th Cir.1984) “explo- respond in our But haste curiam), -, cert. litigation in the federal sion of When ante, courts,” Opinion Majority at we 1915(a) Congress wrote 28 U.S.C.A. § keep paramount in our minds a con- (1985), providing for legitimate cern for “the fine line between vesting in the trial courts limited suits impermissible restriction and an restraints if “frivolous latitude to dismiss such cases ac- prisoner’s constitutional on a malicious,” 1915(d), id. penned ante, Id. the courts.” at 1072. In cess to individualized, case-by-case prescription for problem responding to this sensitive courts frivolity merit or determination especially to craft reme- must be careful Green, 669 F.2d at 786; filing. each Car specific “narrowly drawn to fit dies ter, Castro, F.2d at 737. On we will not F.2d at encountered.” vice method prescribe particular 410; Abdullah, 488; normally 773 F.2d at Wood Commerce, undertake this by which a trial сourt will Barbara Chamber Santa determination, (9th Cir.1983), but we are nonetheless

1079 compel the arbitrarily six, trial court exercise (say bound selected number as the particularized some review. v. majority suggests) or unless the abuse is Steffler 41, 38, 319 63 S.Ct. United physical in nature. 948, 949, (1943) {per 87 L.Ed. 1197 cu- majority’s approach The will erect a com- riam). any To countenance review less plete preventing prisoners bar some with the dictates of probing inconsistent valid, presenting actionable claims of con- Green, at statute. 669 F.2d the magnitude2 stitutional simply because the recognized This Court has that the deci something delict is other than physical to dismiss as frivolous is entrusted to sion abuse or on the randomly follows heels of a trial the “broad discretion” of the court. “magic selected previous number” of fil- 1428, Evans, 709 F.2d 1429 Pace ings year. extent, To that majori- the Cir.1983) curiam). quarrel My ty’s approach violates the Fifth and Four- majority assumption that, is with the teenth Amendments to the United States “discretion,” under the rubric of we can Constitution.3 v. Murphy, Franklin 745 permit ruling trial courts to issue a blanket 1232, (9th 1221, Cir.1984); F.2d Green, 669 types that certain or more than a certain F.2d The at 786. effect of the majority’s filings are, ipso facto, number of frivolous. limitation is rewrite statutory provi- “Discretion” connotes more than mere Congress provided. sions counting filings arithmetic of determina also sanctions the trial court’s of abdication likely subsequent of merits of tive obligation “Instead, determine if it analyze should take claim. one must the na plaintiffs light step litigation interdicting ture of awesome of the access scope of privilege the Section 1915 of a citizen to the justice. courts of It additionally pinpoint specific abuses to that, crеates an irrebuttable presumption appropriate responsive which remedies can some, at least for no claim of non-physical Telectron, Inc., tied.” Carter v. worthy abuse is of even cursory considera- (S.D.Tex.1977). trial tion. not, held, may clearly we have “act Second, find troubling arbitrarily may applica and it deny willingness to restrict in pauperis forma Pace, on grounds.” erroneous alleging actions to those claims of physical 1429; Johnson, at at permitting harm while other such actions (reversing setting trial court for restric go only upon “payment forward aof prisoner filings tions on frivolous “on the filing Majority Opinion ante, fee.” at 1072. history regard to basis without Proceeding pauperis privi- is a forma particular circumstances thereof and lege right. and not a relevance to im their the [restriction 1915(d). Nevertheless, prisoner when a posed].”); Support Flowers v. Turbine Di presents allegation a meritorious of consti- vision, (5th Cir.1975). deprivation tutional in the form of an in difficulty conjuring I have more obvious action, pauperis civil and he recipe has arbitrary for decision- or erroneous relief, making other reasonable avenue to he per than the secure issuance of a se limit filing either simply may required claims of abuse to an not be pay Admittedly Supreme majority acknowledges has narrowed 3. The its footnote scope constitutionally-based the deprivation claims of complete that a ban on all in forma bring, e.g., see 1908, filings by litigant impermissible. But it Taylor, Parrott v. 451 U.S. apparently by leaving holds that the courthouse Palmer, (1981), L.Ed.2d 420 517, Hudson v. ajar slightly door claims, that a limited number —so Dan- particular slip type, of a or claims can Williams, U.S.-, iels adequate provision made inside—it has nothing But there is L.Ed.2d Clearly constitutional of court access. suggest recent Court’s statements to require Fifth and Fourteenth Amendments deprivation not be heard valid claims of simply need more. past because a judicial process. abused Connecticut, avail- straint results from fear of sanctions Boddie v. fee. 780, 787-88, 11. 28 L.Ed.2d able under Fed.R.Civ.P. 380-82, 91 S.Ct. (1971);4 Page, Davis is The Court’s reliance on this restriction Cir.1980), cert. denied sub 383 n. 9 misplaced reasons. To the extent for two Gladstone, 464 U.S.

nom. Davis v. majority uses Rule 11 sanctions as (1984). I 735, L.Ed.2d 194 see filings minimize frivolous there a means to pretermitting for Bod- principled basis no advantage gained by to be the is little merely the valid holding because die’s requirement of counsel. Rule sanctions amid a sea of the court comes to claim equally available for use law- frivolous suits. litigants. impor- yers pro and se But more implication requirement tantly, a the clear of the Court’s fee for object I prisoner erecting requirement of is that a can obtain it has the effect reason: second if he obtain counsel. This is preferences within the counsel must hierarchy a of value self-rep- squarely at odds with the Amendments. Fifth Fourteenth determines, Amend- protected the Sixth Henceforth, for a resentation the ment, litigants non-physical California, Faretta v. of discrete class 832-34, 2525, 2539-41, process due violation of either a abuse is statute, accurately, longer or, order more lesser at all. I had al- deprivation an actionable protect- thought that the Constitution

ways Fourth, majority proposes that trial equal process and against due ed citizens impose “limitation of may courts elect they in the form of be protection violations further without order of abuse, derogation of or emotional physical Major- has filed.” after the been legal process, of rights, civil denial ante, ity Opinion My objection at 1073. congeries of subsumed other By placing limitations on here is two-fold. Fifth and Four- the banner of under subsequent “pleadings,” rather than on teenth Amendments. action,” majori- subsequent “causes of prisoner to an action but Third, suggests ty permits trial start majority extraordinarily him to it difficult for require plaintiff to file an makes may “a courts time an in expeditiously. Each setting attempts forth he resolve affidavit what to file a seeks attorney repre- made to obtain ante, brief, for Opinion reply to tender a motion summa- Majority sent him.” one, respond to to com- puzzling. ry judgment is or to purpose this restriction of engage in the pel discovery short to evidently assumes that thе tide The Court —in wait practice motion stemmed re- usual of frivolous suits —he specific grant leave counsel, court for a the trial quiring prisoner to secure objective If to minimize the to file. our is doing so will introduce an expectation that resources to frivolous Presumably this re- diversion of restraint. element litigant’s Indeed, neatly anticipated between a assets and nection the Court in Boddie suit, using bringing rejected for in rationale of his motives seriousness beyond present dispute out frivolous claims: fees to weed but it is here good bring arguments [imposing appellants these actions in faith. fees and costs for Moreover, bringing are that divorce] a civil action for alternatives exist to fees and prevention of friv- conserving State’s interest in the requirements as a means for costs substantial, use of court is its olous parties protecting time of courts and process re- costs to allocate scarce fees and litigation____ frivolous rational, its balance between is sources 381-82, Boddie, S.Ct. at 788. 401 U.S. at plain- right to notice and the the defendant’s course, refuge majority can find no Of right to access is reasonable. tiffs Boddie, for of the claims in the bona nature fide opinion, none of these considera- In our provide prisoners with the it here declines to to override the interest tions is sufficient claims are opportunity to demonstrate that their having access to plaintiff-appellants in these Rather, brought. good faith [securing only open the relief avenue they simply are not. assumes necessary sought]. there no con- Not cases, way join this seems an odd to effect opinion. Therefore, am unable deference, goal. dissent. majority’s opinion interpreted

If prisoner’s subsequent

limit action, argument this fails for

causes considering reasons I advanced proposed filings

Court’s limitation on to a

given type injury. number or The sim-

ple already fact that one delict has oc- is in way likely

curred indicative of the subsequent Such a limi- merits claims. Carolyn DALEY, etc., S. tation, believe, deprives impermissibly Plaintiff-Appellee, effective, “adequate, and mean- v. Bounds, ingful” access to the courts. America, UNITED STATES of 1495; S.Ct. at Mitchum v. Defendant-Appellant, Purvis, 650 F.2d at 648. Finally, I exception take opinion respect. sug- in a fifth The Court Canady, al., Leon et curbing one gests that means of frivolous Third-Party Defendants. by entering ‍​​‌‌‌‌​​‌​​‌​​​‌‌‌​‌‌‌‌​​​‌‌​​‌‌​‌‌​​‌​‌​​​​‌​​‌‍injunctions “jailhouse lawyers” help pris- so-called who The FLORIDA NATIONAL AT BANK generate oners dozens of meritless com- LAKELAND, etc., Plaintiff-Appellee,

plaints. Supreme has deter- have, mined at least limit- America, UNITED STATES of circumstances, protected ed interest Defendant-Appellant, access to an inmate writ writer. Johnson Avery, It clear that Canady, al., Leon et retain power impose states certаin limi- Third-Party Defendants. persons, on the activities tations of such plying even forbid them from their craft. MELLISH, etc., Plaintiff-Appellee, Ann properly Id. But we are not called today scope to consider or decide the power. publicist. America, is his own UNITED STATES of generate relies on his Defendant-Appellant, He own wits to his pleadings. Accordingly, portion majority’s holding is obiter dictum. Canady, al., Leon et majority’s opinion represents a re- Third-Party Defendants. sponse perceives what it a serious No. 85-3445. adjudicatory to the integrity threat process. We always be careful as States Appeals, United Court of judges not to too hastily. sound the alarm Eleventh Circuit. must be even not to be- We more careful swept up July come our own rhetoric and on blunt, problems account to attack Opinion. Corrected poorly damage chosen tools that inflict of a than constitutional sort far worse

blight we set out to excise. The just

today does that. It available a makes

plethora of access restrictions that are ill- at hand. I

advised ill-suited to the task

Case Details

Case Name: Robert Procup v. C. Strickland

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jul 2, 1986

Citation: 792 F.2d 1069

Docket Number: 83-3430

Court Abbreviation: 11th Cir.