Before the Court is an order denying plaintiff's application
for leave to proceed in forma pauperis, entered pursuant to
28 U.S.C. § 1915(d) by United States Magistrate Kenneth J. Meyers.
Plaintiff's claim was found frivolous and clearly without merit.
Plaintiff has filed with the Court numerous motions attacking the
denial. Before reviewing the propriety of the denial, a
discussion of the Court's jurisdiction is necessary.
Denial of leave to proceed in forma pauperis on grounds of
frivolity is permissible prior to the issuance of summons. This
circuit's treatment of in forma pauperis applications was
reviewed in Wartman v. Branch 7, Civil Division, County Court,
Milwaukee County, State of Wisconsin, 510 F.2d 130 (7th Cir.
1975). In Wartman, the Court expressly overruled its earlier
decision in United States ex rel. Morris v. Radio Station WENR,
209 F.2d 105 (7th Cir. 1953), which held that in determining
whether to allow a complaint to be filed in forma pauperis under
§ 1915(a), a district court should not consider the merits of the
claim, but should grant the motion to proceed in forma pauperis
if the affidavit of indigency is sufficient. The Radio Station
WENR decision went on to hold that the question of whether the
complaint presented a meritorious claim should then be examined
and the action dismissed pursuant to § 1915(d) if found to be
frivolous or malicious. In overruling this procedure, the Court
in Wartman recognized the illogic of authorizing a dismissal on
grounds of frivolity only after summons has issued pursuant to
Rule 4(a) of the Federal Rules of Civil Procedure. The Court
expressly mandated the procedure to be followed:
Wartman, supra, 510 F.2d at 134. Although the Court was expressly
authorizing a "frivolous and malicious" determination under §
1915(a), the teaching of Wartman is clear. Denying leave to
proceed on grounds of frivolity, a criterion specifically within
the ambit of § 1915(d), is permissible before summons is issued.
While authorizing a denial on grounds of frivolity before
summons is issued, the Wartman decision did not address the
question of a magistrate's authority to make that determination
without the district court's adoption. In the Court's opinion,
the magistrate's order denying plaintiff leave to proceed in
forma pauperis on grounds of frivolity, § 1915(d), should be
treated as a Report and Recommendation, pursuant to
28 U.S.C. § 636(b)(1)(B).
At issue is whether a magistrate's order under § 1915(d) falls
within § 636(b)(1)(A) or (B). Section 636(b)(1)(A) authorizes a
magistrate to hear and determine:
28 U.S.C. § 636(b)(1)(A). Section 636(b)(1)(B) authorizes the
district judge to designate a magistrate to hear the matters
excepted in § 636(b)(1)(A). In such a case, the magistrate is to
submit to the district judge a report and recommendation for
final disposition. A reading of § 636(b)(1)(A) and (B) clearly
indicates that dispositive determinations are delegated to the
Dismissal on grounds of frivolity and maliciousness is by
nature a dispositive ruling, falling within § 636(b)(1)(B). A
determination of frivolity and maliciousness necessarily involves
an analysis of the merits of the asserted claim. Such
determinations are for the district judge to make, by way of
initial consideration or by reviewing the magistrate's Report and
This conclusion is buttressed by recommendations of the Federal
Judicial Center's Prisoner Civil Rights Committee. In discussing
the function of the magistrate in regards to a dismissal under §
1915(d) on grounds of frivolity and maliciousness, the Committee
The Magistrate may submit to the Judge a report and
recommendation for disposition. The original of the
Magistrate's report and recommendation will be filed
with the clerk and a copy mailed by the Magistrate to
the plaintiff and any party who has been served, with
notice that objections thereto may be filed within
ten days. Upon receipt and after consideration of any
exceptions or objections from the plaintiff, the
Magistrate will submit to the Judge a proposed order
Recommended Procedures for Handling Prisoner Civil Rights Cases
in Federal Courts 59 (1980). The Court recognizes that the
Committee recommends that denials under § 1915(a) by a magistrate
can be appealed, according to local rules, to the district judge.
Recommended Procedures, supra, at 54. However, in making this
recommendation as to the magistrate's function, the Committee
viewed denials under § 1915(a) as turning solely on the economic
status of the plaintiff, rather than the merits of the claim. As
noted, this view of § 1915(a) was rejected by the Seventh Circuit
in Wartman. But given the Committee's suggestions as to the
magistrate's different roles under §§ 1915(a) and (d), it is
clear that it views a dismissal on grounds of frivolity and
maliciousness a dispositive ruling and subject to the procedures
of § 636(b)(1)(B). Accordingly, the Court treats the magistrate's
denial of leave to proceed in forma pauperis as a Report and
In his complaint, plaintiff, an inmate at the United States
Penitentiary at Marion, Illinois, alleges that prison officials
are violating his rights under the Eighth Amendment. He alleges
that prison officials are intentionally torturing him in hopes he
will commit suicide. Specifically, plaintiff alleges that wires
and metal conductors, operated by remote control, have been
implanted throughout his entire body. He states that defendant
operates the remote control device, causing him extreme mental
and physical pain. The heat from the wires allegedly have burned
holes in various parts of his body, resulting in waste pouring
from his intestines and stomach. Plaintiff requests injunctive
relief and damages in the sum of $10,000,000.
On February 8, 1982, United States Magistrate Kenneth J. Meyers
ordered the plaintiff to submit a detailed factual statement of
what, when, where and how the acts and conduct alleged occurred,
along with the named defendant's involvement. Further,
plaintiff's medical records were ordered.
On April 19, 1982, Magistrate Meyers denied plaintiff leave to
proceed in forma pauperis. As grounds, plaintiff's medical
records were examined along with x-rays taken on the day the
order was entered. Plaintiff was denied leave under § 1915(d)
because his claim "is frivolous and clearly without any merit."
After reviewing the record, the Court agrees with Magistrate
Meyers' conclusion. Plaintiff's claim is wholly without merit.
Plaintiff objects by stating that the x-ray examination was not
performed by unbiased personnel. The Court views this objection
unpersuasive. Plaintiff's contentions, if sincere, are wholly
Accordingly, the Court hereby ADOPTS the Report and
Recommendation of United States Magistrate Kenneth J. Meyers.
Leave to proceed in forma pauperis is hereby DENIED.
IT IS SO ORDERED.
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