1 Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). United States Court of Appeals,

Fifth Circuit.

No. 92-4226.

Jimmy S. BOOKER, Plaintiff-Appellant,

v.

Richard KOONCE, et al., Defendants-Appellees.

Sept. 16, 1993.

Appeal from the United States District Court for the Eastern District of Texas.

Before POLITZ, Chief Judge, REYNALDO G. GARZA and JOLLY, Circuit Judges.

POLITZ, Chief Judge:

Jimmy Sol Booker, proceeding pro se and in forma pauperis filed a 42 U.S.C. § 1983 suit

against the City of Wills Point, Texas, several of its police officers, and t he local district attorney,

claiming illegal detention, false arrest, wrongful imprisonment, and malicious prosecution. Following

a Spears 1 hearing, the parties filed reciprocal motions for summary judgment. The magistrate judge

recommended that Booker's complaint be dismissed with prejudice as frivolous under 28 U.S.C. §

1915(d) because "the Plaintiff has little or no chance of prevailing on the merits of his claim and ...

the c o mplaint lacks basis in fact and law." Booker timely appealed. For the reasons assigned we

affirm the dismissal of his complaint.

Background

In connection with the investigation of a se xual assault which occurred on July 17, 1988,

Police Chief Richard Koonce and Officer Scott Johnson went to Booker's house to question him. On

August 17, Officer Ann Franks stopped Booker on the street and advis ed him that Chief Koonce

wanted to see him. Bo o ker voluntarily repaired to the station and was fingerprinted and

photographed. On August 19, based upon an affidavit stating that Booker's thumb print was found

at the crime scheme, the police obtained a warrant and arrested him for sexual assault. Booker was

indicted and held in the county jail until May, 1989. The sexual assault charge was dismissed on2 Denton v. Hernandez, --- U.S. ----, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992).

3 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

4 789 F.2d 318, 326 (5th Cir.1986).

5 Pugh v. Parish of St. Tammany, 875 F.2d 436 (5th Cir.1989). Neitzke held that a complaint

which fails to state a claim for purposes of Fed.R.Civ.P. 12(b)(6) is not automatically frivolous

within the meaning of section 1915(d).

6 There is no question regarding the validity of Cay's second prong. In both Neitzke and

Denton, the Court held that a complaint "is frivolous where it lacks an arguable basis either in law

or in fact." Neitzke, 490 U.S. at 325, 109 S.Ct. at 1831-32; Denton, --- U.S. at ----, 112 S.Ct. at

1733. November 6, 1989.

Booker contends that there was no probable cause for his arrest because the police fabricated

the evidence. He contends that the police obtained his fingerprint not from the crime scene, but

during his August 17 visit to the police station. He alleges that Chief Koonce was involved in a

conspiracy with Officers Franks and Johnson.

Analysis

Dismissal of an in forma pauperis petition under 28 U.S.C. § 1915(d) may be appropriate

if the district court is "satisfied that the action is frivolous or malicious." We review a district court's

section 1915(d) dismissal under the abuse of discretion standard. 2

Prior to the recent Supreme Court teachings regarding section 1915(d) dismissals in Neitzke

v. Williams 3 and Denton, we held in Cay v. Estelle 4 that "[a]n IFP proceeding may be dismissed if (1)

the claim's realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law and

fact; or (3) it is clear that the plaintiff can prove no set of facts in support of his claim." Thereafter,

however, we determined that Neitzke invalidated Cay's third prong. 5 The question presented by this

appeal is whether Neitzke and Denton also render invalid Cay's first prong. 6

In Denton, the Court emphasized that review of a complaint for factual frivolousness is quite

limit ed. A finding of factual frivolousness is only appropriate in the limited class of cases wherein the

allegations "rise to the level of the irrational or the wholly incredible," and does not include cases in7 --- U.S. at ----, 112 S.Ct. at 1733.

8 490 U.S. at 329, 109 S.Ct. at 1833.

9 In Pugh, we suggested that to the extent that Cay's first prong permits dismissal of lawsuits

which have " no realistic chance of success on the merits," it is wholly consistent with the purposes

of section 1915(d). 875 F.2d at 438 (emphasis added). We agree. We invalidate Cay's first

prong today, only to the extent that it permits section 1915(d) dismissal of claims which have

some "slight" chance of success on the merits.

10 Neitzke, 490 U.S. at 327, 109 S.Ct. at 1832.

11 Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Young v. Biggers,

938 F.2d 565 (5th Cir.1991).

12 Monell v. New

York City Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611

(1978); Turner v. Upton County, Texas, 915 F.2d 133 (5th Cir.1990), cert. denied, 498 U.S.

1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991). which the court simply "finds the plaintiff's allegations unlikely." 7 Just as Denton counsels that it is

inappropriate to dismiss those cases where t he plaintiff's factual allegations are unlikely, N eitzke

counsels that claims which are legally unlikely are not necessarily frivolous. N eitzke recognizes as

nonfrivolous a class of claims which ultimately may be dismissed under Rule 12(b)(6) but which have

an arguable basis in law. 8 These claims, however, fall squarely within C ay's first pr ong—thei r

"realistic chance of ultimate success is slight." If the plaintiff has a "slight" chance of success, there

obviously is some chance. 9 Both D enton and Neitzke counsel against dismissing petitions which have

some chance of success. A dismissal of such claims under section 1915(d) is inappropriate.

There was no abuse of discr et io n, ho wever, in the section 1915(d) dismissal of Booker's

claims against the Wills Point District Attorney and the City of Wills Point. A claim against a

defendant who is immune from suit is frivolous because it is based upon an indisputably merit less

legal theory. 10 A prosecutor enjoys absolute immunity from section 1983 damage claims for actions

taken in initiating and pursuing prosecution. 11 Booker's claim against the city is likewise without an

arguable basis in law. At the S pears hearing, Booker testified that he sued the City as the employer

of the police officers and the district attorney

. Section 1983 claims against a municipality may not

be based upon respondeat superior liability. 12

The district court's reliance on Cay's first prong for the section 1915(d) dismissal of Booker's13 Thomas v. Sams, 734 F.2d 185, 191 (5th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct.

3476, 87 L.Ed.2d 612 (1985).

14 See Hand v. Gary, 838 F.2d 1420 (5th Cir.1988) (officer shielded from civil rights liability

for arrest pursuant to warrant issued by neutral and detached magistrate judge).

15 Hand, 838 F.2d at 1427 (citations omitted).

16 Wooton v. Pumpkin Air, Inc., 869 F.2d 848, 850 n. 1 (5th Cir.1989) (quoting Terrell v.

University of Texas System Police, 792 F.2d 1360, 1362 n. 3 (5th Cir.1986), cert. denied, 479

U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987)).

17 Because the district court dismissed under section 1915(d), it denied both parties' motions for

summary judgment. The parties were afforded an opportunity in the district court, however, to

respond to the summary judgment motions. In fact, the magistrate judge's recommendation that

the claim be dismissed and the officers' brief on appeal rely heavily on the lack of summary

judgment evidence to support Booker's claims. In the interest of judicial economy, and because

summary judgment is subject to de novo review by this court, we review the summary judgment

record in this case on appeal to determine whether it provides an independent basis for affirming

the dismissal of Booker's claims. To remand this case to the district court for an inevitable grant

of summary judgment and yet another appeal therefrom would be a purposeless waste of scarce

judicial resources.

18 Denton, --- U.S. at ----, 112 S.Ct. at 1733. Thus, the district court should not have relied

upon the summary judgment record in determining whether section 1915(d) dismissal is claims against the police officers was improper. "The right to be free from illegal arrest plainly enjoys

[constitutional] protecti on." 13 The officers co nt end that they should be immune from liability for

Booker's arrest because they obtained a valid warrant. 14 Booker has al l eged, however, that the

officers fabricated the evidence upon which the magistrate issued the warrant. "[A]n officer who

maliciously seeks to obtain a facially valid warrant should not be abso lved from liability simply

because he succeeded." 15 Booker's claim thus has an arguable basis in law and his factual allegations

are not facially frivolous.

"When the judgment of the district court is correct, it may be affirmed on appeal for reasons

other than those asserted or relied on below." 16 Although we find that the section 1915(d) dismissal

of the officers was improper, it is clear from the record that the officers were entitled to summary

judgment. 17 This case demonstrates the difference between the review for section 1915(d) dismissals

and dismissals on the merits. In the section 1915(d) context, the initial assessment of the plaintiff's

factual allegations "must be weighted in favor of the plaint iff;" the factual frivolousness determination

"cannot serve as a factfinding proce ss for t he resolution of disputed facts." 1 8 At the summaryappropriate—"a § 1915(d) dismissal is not a dismissal on the merits." Id., --- U.S. at ----, 112

S.Ct. at 1734.

19 Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). judgment stage, however, we review t he summary record as a whole. Summary judgment is

appropriate "against a party who fails to make a showing sufficient to establish the existence of an

element essential to that party's case, and on which that party will bear the burden of proof at trial." 19

Booker has presented no more than conclusionary allegations in support of his claim that the Wills

Po i nt police officers manufactured evidence in order to get a warrant for his arrest. Summary

judgment in favor of the police officer defendants, therefore, was in order.

Accordingly, the district court's judgment dismissing Booker's claims is AFFIRMED.