*The HONORABLE ANDREW W. BOGUE, United States District Judge

for the District of South Dakota, sitting by designation.

___________

 No. 95-3798 

___________

William Cooper

*

Plaintiff - Appellant *

* Appeal from the United States

v. * District Court for the Western

* District of Missouri.

Wood, Caseworker; James Gammon; *

O’Brien, Lt.; Gary W. McCarter; * [UNPUBLISHED]

Stobietto, Caseworker; Robert D. *

Riley; Charles Baker *

*

Defendants - Appellees *

___________

 Submitted: February 12, 1997

 Filed: April 15, 1997

___________

Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE, District Judge. *

___________

PER CURIAM

William Cooper appeals from the final judgment of the District Court

for the Western District of Missouri dismissing as frivolous and malicious

Cooper’s 28 U.S.C. § 1983 action. For the reasons discussed below, we

reverse and remand for further proceedings.

Cooper filed the instant complaint, making several claims relating

to his transfer to the Moberly Correctional Center. In his 
-2-

report, recommendation, and order, the magistrate judge granted Cooper

leave to proceed in forma pauperis and ordered service of process. The

defendants thereafter moved for summary judgment and Cooper moved for

additional time to respond to that motion. Without ruling on Cooper’s

motion, the district court dismissed the case. 

In Cooper v. Malone, No. 93-4424-CV-C-5 (W.D. Mo. Sept. 8, 1995),

aff’d, 65 F.3d 172 (8 Cir. 1995), cert. denied, 116 S.Ct. 1329 (1996),

th

following a jury trial on Cooper’s excessive force claims, the district

court, upon its own motion, found Cooper had made false accusations,

misrepresented the expected testimony of witnesses, and ignored court

orders limiting his cross-examination. The court further found that Cooper

presents false, frivolous and malicious claims; has abused the judicial

process; has imposed unnecessary burdens on, and useless consumption of,

court resources; and has admitted that he files lawsuits to “get back at

the system and to give [the state] something to do.” In the same “Findings

and Order” filed in the Cooper v. Malone case, the court, sua sponte, found

that both Cooper v. Malone and the instant case were frivolous and

malicious. The court entered judgment dismissing the instant case “[i]n

accordance with [its] findings and order in Cooper v. Malone . . . on the

authority of 28 U.S.C. § 1915(d).” On appeal, Cooper argues the district

court erred in relying on findings in Cooper v. Malone to dismiss his

complaint in the instant case under § 1915(d).

We agree that Cooper’s claim in this case cannot be dismissed under

§ 1915(d) without the district court first making specific findings

relative to the frivolity or maliciousness of the claim. Generally, the

determination of whether a complaint is frivolous or malicious precedes the

decisions of whether to proceed in forma pauperis and whether process

should be issued and served. Gentile v. Missouri Dept. of Corrections, 986

F.2d 214, 217 (8 Cir. 1993). If the complaint is frivolous or malicious, th

it should be dismissed out 
-3-

of hand. Id. If it is not frivolous or malicious, in forma pauperis should

be granted, and process issued and served. Id. “The case should then

proceed under the Federal Rules of Civil Procedure as any paid complaint

does, except that if the Court becomes convinced at any time that the

complaint is frivolous or malicious, it may revoke in forma pauperis status

and dismiss the complaint under 28 U.S.C. § 1915(d).” Id.

In Neitzke v. Williams, 490 U.S. 319, 325 (1989), the Supreme Court

indicated a complaint is frivolous within the meaning of § 1915(d) “where

it lacks an arguable basis either in law or in fact.” The Court, however,

did not define what is “malicious” under § 1915(d). Our cases have

interpreted “malicious” to apply to situations where the plaintiff knows

the allegations to be false, Horsey v. Asher, 741 F.2d 209, 212 (8 Cir. th

1984); where the complaint is “plainly part of a longstanding pattern of

abusive and repetitious lawsuits,” Id. at 213; and where the complaint

contains disrespectful references or abusive language, In re Tyler, 839

F.2d 1290, 1293 (8 Cir. 1988)(per curiam). th

With respect to the case at bar, the district court made no record

findings upon which to base its conclusion that the complaint is “frivolous

and malicious.” The court, in the context of another case, merely found

that Cooper has abused the judicial process in the past. A complaint filed

in forma pauperis, however, is not subject to dismissal simply because the

plaintiff is litigious. Rather, the substance of the claim is the

appropriate measure. See, Crisafi v. Holland, 655 F.2d 1305 (D.C. Cir.

1981); and Horsey, 741 F.2d at 213 (“It is the maliciousness of the

complaint, not of the plaintiff personally, that is important”). Moreover,

a finding that one complaint is frivolous or malicious is not sufficient

grounds for dismissing a separate complaint as frivolous or malicious.

Horsey, 741 F.2d at 213.
-4-

Accordingly, we reverse the dismissal and remand for the district

court, in its discretion, to make specific findings to justify dismissal

of this case or to proceed with the case on the merits. 

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.