SECTION VII: FORMA PAUPERIS ACTIONS BY REPETITIVE LITIGANTS A few courts have found that a repetitive plaintiff has abused the right to proceed in forma pauperis and have imposed upon him an affirmative burden to show good cause and that the action is not frivolous or malicious, prior to being allowed to proceed. In Graham v. Riddle, 554 F.2d 133 (4th Cir. 1977), the court affirmed the district court's order conditioning the plaintiff's right to file complaints in forma pauperis upon "good cause shown." In affirming the issuance of the order, the court further noted: It is quite clear that Congress, while intending to extend to poor and meritorious suitors the privilege of having their wrongs redressed without the ordinary burdens of litigation, at the same time intended to safeguard members of the public against an abuse of the privilege by evil-minded persons who might avail themselves of the shield of immunity from costs for the purpose of harassing those with whom they were not in accord, by subjecting them to vexatious and frivolous legal proceedings. In the instant case the district court did not abuse its discretion. It had experienced a plethora of frivolous, repetitive complaints. When it entered its order of April 12, 1973, it had every reason to expect the pattern to continue, as indeed it did. The district court was not required to go through the formalities of granting leave to file, docketing the case and then dismissing on the merits, as authorized by 28 U.S.C. Section 1915(d). It could properly 554 F.2d at 134. In Carter v. Telectron, Inc., 452 F.Supp. 944 (S.D. Tex. 1977), the plaintiff had filed at least 178 cases in a fifteen year period. The court adopted a special procedure whereby any future request by plaintiff to proceed in forma pauperis would be denied unless plaintiff made a showing of good cause for bringing the particular action at public expense: Because of his prior pattern of 452 F.Supp. at 998. The plaintiff's practice of filing similar suits in different jurisdictions led the court to invoke the "All Writs" statute, 28 U.S.C. § 1651, as authority for issuing a mandatory injunction imposing special requirements for every cause of action filed by plaintiff in any federal or state court. Plaintiff was required, in addition to making service of process as required by the appropriate rules, to personally send a copy of the complaint or petition and every subsequent pleading to the defendants or defense counsel, if known, and to submit documentary evidence of such service to the respective court in a supplemental pleading. Further, plaintiff was required to verify all pleadings submitted for filing; to include in every complaint or petition filed a list of all cases previously filed on the same, similar, or related cause of action, and all actions previously filed against one or more of the defendants, including predecessors or successors in interest or office; to include in every complaint or petition a statement referring to the court's opinion; to send a copy of every complaint or petition filed to the staff law clerk, Southern District of Texas, Houston Division; and to provide the court with a list of causes of action not included in the list set forth in the court's opinion. Walton v. Eaton Corp., 563 F.2d 66, 71 (3d Cir. 1977) held: "[T]he court must ensure that the plaintiff does not use the incorrect procedure of filing duplicative complaints for the purpose of circumventing the rules pertaining to the amendments of complaints and demand for trial by jury." Dictum in Hardwick v. Doolittle, 558 F.2d 292, 296 (5th Cir. 1977) recognized that when necessary to prevent harassment of successful litigants, the boundaries of res judicata and collateral estoppel can be protected by an injunction. In Hardwick res judicata and collateral estoppel did not apply because the action was habeas corpus. SECTION VIII: REQUIREMENTS FOR A CAUSE A. Action Under Color of State Law The plaintiff in a section 1983 action must allege that the defendant or defendants were acting under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157 n. 5, 98 S.Ct. 1729, 1734 n. 5, 56 L.Ed.2d 185, 194 n. 5 (1978) stated: "The involvement of a state official plainly provides the state action essential to show a direct violation of petitioner's Fourteenth Amendment rights, whether or not the actions of the police were officially authorized, or lawful." Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492, 503 (1961), in discussing the meaning of "under color of state law, noted that "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law. "54 Private citizens cannot be sued under section 1983 for non state-related activities55 unless they conspired 53. Section 1983 is set out in Section I supra. 54. The District of Columbia is not a "state" for purposes of jurisdiction under section 1983. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), rehearing denied, 410 U.S. 959, 93 S.Ct. 1411, 35 L.Ed.2d 694. 55. Slavin v. Curry, 574 F.2d 1256 (5th Cir. 1978) (appointed defense counsel and investigator); Magill v. Avonworth Baseball Conference, 516 F.2d 1328 (3d Cir. 1975); Steward v. Meeker, 459 F.2d 669 (3d Cir. 1972) (private counsel); Hill v. McClellan, 490 F.2d 859 (5th Cir. 1974) (private counsel); Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972) (attorney who voluntarily represented plaintiff); U.S. ex rel Simmons v. Zibillch, 542 F.2d 56 with state officers There is a conflict among the circuits as to the liability of private citizens who conspired with immune state officers. Most circuits hold that the immunity of the state officer bars an action against the private citizens. 57 However, the First Circuit has declined to follow them: Slotnick v. Staviskey, 560 F.2d 31, 32-33 (1st Cir. 1977); Downs v. Sawtelle, 574 F.2d 1 (1st Cir. 1978); Kermit Const. Corp. v. Banco Credito Y Ahorro Ponceno, 547 F.2d 1 (1st Cir. 1976); and the Supreme Court has not 57 a yet decided the issue. The Fifth Circuit holds that a "detention by store employees is under color of state law if it is demonstrated that the store employees and the police were acting in concert" in detaining a customer for suspicion of shoplifting "and that the store and the police had a customary plan which resulted in the detention. Duriso v. K-Mart No. 4195, Div. of S.S. Kresge Co., 559 F.2d 1274, 1277 (5th Cir. 1977). Fine v. City of New York, 529 F.2d 70 (2d Cir. 1975) found the complaint failed to state a cause of action against the attorney who merely served as 259 (5th Cir. 1976) (attorney appointed from pool of attorneys of county legal aid criminal division); Robinson v. Bergstrom, 579 F.2d 401 (7th Cir. 1978) (public defender acted under color of state law but he was immune). Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (private attorney represented criminal defendant); Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir. 1978) (attorney's representation of a criminal defendant is not state action or official conduct). 56. Adickes v. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142, 151 (1970); Alexanian v. New York State Urban Development Corp., 554 F.2d 15 (2d Cir. 1977); Weisman v. Lelandais, 532 F.2d 308 (2d Cir. 1976); Phillips v. Trello, 502 F.2d 1000 (3d Cir. 1974); Taylor v. Gibson, 529 F.2d 709 (5th Cir. 1976) (physician and hospital administrator); Davis v. Murphy, 559 F.2d 1098 (7th Cir. 1977). See Briley v. State of California, 564 F.2d 849, 855-56 (9th Cir. 1977). 57. Perez v. Borchers, 567 F.2d 285 (5th Cir. 1978); Humble v. Foreman, 563 F.2d 780 (5th Cir. 1977); Hill v. McClellan, 490 F.2d 859 (5th Cir. 1974); Kurz v. State of Michigan, 548 F.2d 172 (6th Cir. 1977); Hansen v. Ahlgrimm, 520 F.2d 768 (7th Cir. 1975). 57a. See Note, "Vicarious Immunity" of Private Persons in Section 1983 Actions: "An Unexamined Assumption," 28 Case Western Reserve L. Rev. 1014 (1978). |