### *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 Wood, Caseworker; James Gammon; * O’Brien, Lt.; Gary W. McCarter; * [UNPUBLISHED] Stobietto, Caseworker; Robert D. * Riley; Charles Baker * * Defendants - Appellees *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 fina l 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, w e reverse and remand for further proceedings. Co oper filed the instant complaint, making several claims relatin g to his transfer to the Moberly Correctional Center. In his

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repo rt, recommendation, and order, the magistrate judge granted Coope r leave to proceed in forma pauperis and ordered service of process. Th e defend ants thereafter moved for summary judgment and Cooper moved fo r addit ional time to respond to that motion. Without ruling on Cooper’ s motion, the district court dismissed the case. In Co oper 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 fol lowing a jury trial on Cooper’s excessive force claims, the distric t
cour t, upon its own motion, found Cooper had made false accusations , misrepr esentedthe expected testimony of witnesses, and ignored cour t orders limiting his cross-examination. The court further found that Coope r presen ts false, frivolous and malicious claims; has abused the judicia l 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 “Finding s and Order” filed in the Cooper v. Malone case, the court, sua sponte , foun d tha t both Cooper v. Malone and the instant case were frivolous an d 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
cou rt erred in relying on findings in Cooper v. Malone to dismiss hi s 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 finding s relative to the frivolity or maliciousness of the claim. Generally, the determination of whether a complaint is frivolous or malicious precedes th e decisio ns of whether to proceed in forma pauperis and whether proces s 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

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of hand. Id . If it is not frivolous or malicious, in forma pauperis shoul d be granted, and process issued and served. Id . “The case should the n proceedunder the Federal Rules of Civil Procedure as any paid complaint doe s, except that if the Court becomes convinced at any time that th e complaint is frivolous or malicious, it may revoke in forma pauperis statu s and dismiss the complaint under 28 U.S.C. § 1915(d).” Id

.

In Neitzk e 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 f act.” The Court, however, did not d efine what is “malicious” under § 1915(d). Our cases hav e 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 complain t contai ns disrespectful references or abusive language, In re Tyler , 83 9 F.2d 1290, 1293 (8 Cir. 1988)(per curiam). th With r espect to the case at bar, the district court made no recor d findings upon which to base its conclusion that the complaint is “frivolou s andmalicious.” The court, in the context of another case, merely found that Cooper has abused the judicial process in the past. A complaint file d in forma pauperis, however, is not subject to di smissal simply because the pla intiff is litigious. Rather, the substance of the claim is th e appropriate measure. See , Crisafi v. Holland , 655 F.2d 1305 (D.C. Cir

. 1981); an d Horsey , 741 F.2d at 213 (“It is the maliciousness of th e complaint, not of the plaintiff personally, that is important”). Moreover , a finding that one complaint is frivolous or malicious is not sufficient ground s 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 distric t 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.