Comments on: Because we all love wacky pro se suits: Ward v. Arm & Hammer

By: Larry Sinclair v. Barack Obama

Larry Sinclair v. Barack Obama — Wed, 07 Jan 2009 18:26:40 +0000

[…] without requiring the victimized defendants to expend legal fees in responding; in December 2006, I discussed the underuse of this provision in pro se litigation. More on delusional pro se […]

By: Ted Frank

Ted Frank — Mon, 18 Dec 2006 19:52:48 +0000

David, you’re correct that my complaint is not about the IFP status so much as the failure of the district court to dismiss under (e)(2) (or to certify bad faith under (a)(3)).

By: David Giacalone

David Giacalone — Mon, 18 Dec 2006 19:43:27 +0000

Ted, That section seems to refer to the appellate court itself making the frivolousness finding -- and (this being the U.S.A.) that has to occur after it grants pauper status and allows the case to be filed. I think the "bad faith" exception exists in Subsection (a)(3) to give the trial court the opportunity to shortcircuit the in forma pauperis request. Otherwise, the "three prior times" rule looks like the only way to achieve an automatic rejection of the pauper status.

By: David Giacalone

David Giacalone — Mon, 18 Dec 2006 19:21:35 +0000

Ted, Like you, I’m sorry to see that such a silly suit has wasted so many resources. Nonetheless, I’m wondering about your citation to 28 U.S.C. § 1915. If the trial court has not certified that the appeal is not in good faith, frivolousness is not a reason to refuse in forma pauperis status, unless the prisoner has “(g) . . . on 3 or more prior occasions. . . brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” Does Ward fit that exception?

[The relevant provision is 28 U.S.C. § 1915(e)(2)(B)(i), not (g): “[T]he court shall dismiss the case at any time if the court determines that the action or appeal is frivolous”. Subsection (B)(ii) also permits a court to dismiss sua sponte if the plaintiff has failed to state a claim. — TF]

By: Anon

Anon — Mon, 18 Dec 2006 17:00:55 +0000

Is it me, or is it a little weird that the judge didn’t feel the need to mention which state’s law he was applying? The Third Circuit decision he cites was apparently applying New Jersey and New York law. But my guess is that the alleged harm here occurred in Virginia. Of course the claim probably would not have prevailed under Virginia law either, but doesn’t it seem odd that the judge purports to decide the case by adhering to a precedent from what is probably the wrong state — without even noting that he was doing so?

By: John

John — Mon, 18 Dec 2006 16:48:12 +0000

So, under loser pays should we pass the bill from Morgan, Lewis, and Bockius to the Deparment of Corrections?

[There’s no reason a court can’t stem a suit like this by refusing to issue a summons and dismissing the case before MLB bills a minute. — TF]

By: Seth

Seth — Mon, 18 Dec 2006 14:47:50 +0000

While I agree that this definitely meets the criteria for “wacky pro se suits”, the claim does make for fairly interesting commentary on mandatory sentencing guidelines for crack vis-a-vis powdered cocaine.