SECTION V: ALTERNATIVES - DIRECTION OF SERVICE; Once it is determined that the plaintiff should be granted leave to proceed in forma pauperis, the next step is determining whether the marshal should be directed to make service upon the defendants, whether the plaintiff should be given an opportunity to amend the complaint, 42 or whether the action should be dismissed as frivolous.43 Title 28, United States Code, section 1915(d), provides: "The court . may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous and malicious. Standard D of . the Aldisert Report44 recommends: If the court determines that the com- frivolous or malicious and should 42. See Section II,G supra. 43. See Section VI, infra. 44. See Section II,E n. 27 supra. If the marshal is directed to make service, the order should provide "costs of service to be advanced by the United States." The plaintiff will not be prevented from commencing suit because of his lack of funds, but if it turns out that funds do become available to him, he could be required to reimburse the government for those costs. See Helwig v. Cavell, 171 F.Supp. 417 (W.D. Pa. 1959), aff'd 271 F.2d 329, cert. denied 362 U.S. 954, 80 S.Ct. 870, 4 L.Ed.2d 872, rehearing denied 362 U.S. 992, 80 S.Ct. 1080, 4 L.Ed.2d 1024. See also Marks v. Calendine, F.Supp. (N.D. W. Va., filed June 13, 1978) (76-283-E). Where the plaintiff has been granted leave to proceed in forma pauperis but the court subsequently determines that the complaint is frivolous or malicious, it can be dismissed without service of process. 45 The Aldisert Report46 suggests that in selected cases a special order be entered requiring the defendant to investigate the case and to report the results of his investigation to the court. Form 8 of the report is a suggested order requiring a special report. The uses for the special report are discussed in detail in the committee's report. This special report was commented upon by the Fifth Circuit in Hardwick v. Ault, 517 F.2d 295 (5th Cir. 1975): It is not clear how this 'special, report' procedure interacts with the more familiar processes of pre-trial practice under the Federal Rules of Civil Procedure which ordinarily would govern Section 1983 cases. To 47 45. Watson v. Ault, 525 F.2d 886 (5th Cir. 1976); Forester v. California Adult Authority, 510 F.2d 58 (8th Cir. 1975). Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). However, this does not apply in the Seventh Circuit since after the plaintiff is granted leave to file the complaint, it cannot be dismissed until summons has issued. Nichols v. Schubert, 499 F.2d 946 (7th Cir. 1974). For a discussion of the applicable standards for the determination of whether the complaint is frivolous or malicious, see Section VI infra. 46. See Section II,E n. 27, supra. 47. Id. at 94. the extent that requiring such 517 F.2d at 298. In Watson v. Ault, 525 F.2d 886 (5th Cir. 1976), the district court had improperly dismissed plaintiff's complaint as frivolous for plaintiff's failure to respond to a questionnaire prepared by the court for the purpose of developing the facts. Although the district court had erred in dismissing since the complaint alleged a cause of action, the court of appeals approved its use of the questionnaire, noting that it was a useful means for the court to develop the factual basis of the plaintiff's complaint and would aid in ferreting out instances where prisoners abused the processes of the court by multiple filings. The court noted that the form should be simple enough for the average prisoner to understand the questions. It should be concise and pertinent to the claim asserted. The answer to the questionnaire would be an integral part of the complaint, rather than a separate, independent pleading, since it would effectively amplify the original allegations of the complaint. The court also approved the withholding of service of process by the district court pending receipt of the questionnaire. In Taylor v. Gibson, 529 F.2d 709 (5th Cir. 1976), plaintiff's complaint was assigned a docket number for record keeping purposes and then referred to a United States magistrate who entered an order, apparently prior to service of process, requiring factual responses from the various defendants. Plaintiff submitted affidavits in response and the magistrate's recommendation that plaintiff be denied leave to proceed in forma pauperis was adopted by the district court. The court of appeals reversed, finding that the court had erred in resolving matters of credibility on the basis of affidavits without conducting a hearing. The court noted that the "factual response" required of the defendants by the magistrate appeared to be similar to the questionnaires used in Watson, supra, and the special report discussed in Hardwick, supra. After commenting on the desirability for the district courts to develop imaginative and innovative methods of dealing with the flood of prisoner complaints in suits the court stated: The questionnaire, special report, and 529 F.2d at 717. Bruce v. Wade, 537 F.2d 850 (5th Cir. 1976) reversed the district court's dismissal of the complaint for failure to state a claim. Plaintiff had alleged that he was ordered beaten and confined under inhumane conditions by a deputy sheriff. However, the court commented that remand would not necessarily require a trial. The court stated: [A] wide range of pretrial procedures choose among these or other procedures and we do not suggest that the facts of this case require the use of any particular device. 537 F.2d at 853 n. 5. In Hurst v. Phelps, 579 F.2d 940 (5th Cir. 1978), the court of appeals vacated the district court's dismissal of the action which was based upon the recommendation of a magistrate who had ordered the Secretary of Corrections to file an administrative report. After receipt of the report the magistrate made factual determinations on the merits of plaintiff's claim in which he alleged he had been denied medical treatment by prison officials, and recommended that the case be dismissed. The court of appeals commented that the procedure utilized did not comport with the Federal Rules of Civil Procedure or the applicable case law. Therefore, the court remanded for further proceedings. Similarly in Mitchell v. Beaubouef, 581 F.2d 412 (5th Cir. 1978), the court disapproved of the dismissal of the complaint based upon an unverified administrative report of the defendants filed pursuant to a magistrate's order. The court stated that the district court could have relied on the report in reaching summary judgment if it had conformed to the requirements of Rule 56 of the Federal Rules of Civil Procedure. In Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), the plaintiffs had alleged that their personal property' was stolen and confiscated by the defendant correctional officers during a routine shakedown of their dormitory. Before the answer was filed the trial court ordered the prison officials to conduct an investigation of the incident including an interrogation of the persons concerned. The transcripts of the interrogations, which were not required to be under oath, and an explanation by the officials were to be attached to the defendants' answer. The trial court then dismissed the complaint as frivolous under 28 U.S.C. section 1915(a) and (d). The dismissal was based to some extent upon the prison officials' investigation as reported to the court. The court of appeals approved the practice, stating: We consider this order and practice to be not only proper but necessary for the orderly consideration of the issues |