Appeal from the Judgment of the United States District Court for the Eastern District of Pennsylvania, Civil No. 87-0456.
Seitz,*fn* Cowen and Garth, Circuit Judges.
Appellant, Lawrence D. Wilson, appeals from the final order of the district court granting defendants Shelley Witenstein and Michael Santella's motion to dismiss and denying appellant's motion for reconsideration of the district court's order which dismissed as frivolous appellant's claims against the remaining defendants. We have jurisdiction under 28 U.S.C. § 1291.
Appellant filed this civil rights action in the district court against various federal probation officers, two federal parole examiners and a regional commissioner of the United States Parole Commission. In his complaint appellant alleged, inter alia, that the defendants "all worked in concert with each other to cause the arrest of plaintiff, to improperly investigate and make probable cause findings, and conduct an unfair parole revocation hearing to ensure that the plaintiff is returned to prison and that his business, employment and personal life is destroyed." Appellant alleged that the defendants violated his "rights under the U.S. Constitution," and he requested declaratory and injunctive relief and damages.
After granting appellant leave to proceed in forma pauperis, the district court dismissed the claims against all defendants except Witenstein and Santella as frivolous under 28 U.S.C. § 1915(d), without requiring an answer, on the grounds that "[the] plaintiff's complaint fails to allege a violation of his constitutional rights by these defendants that is required for a direct cause of action under the Constitution against federal officials. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971)." The district court then directed that the complaint be filed against the two parole examiners, defendants Witenstein and Santella, "in regard to plaintiff's claims regarding his parole revocation hearing."
Appellant timely served a motion for reconsideration of the district court's order, arguing that he had alleged in his complaint that the defendants conspired to deprive him of his fifth amendment right to procedural due process with respect to his parole revocation. He contended that he clearly stated a cause of action under Bivens and under 42 U.S.C. § 1985(3). The district court subsequently denied the motion for reconsideration.
The two remaining defendants, parole examiners Witenstein and Santella, filed an answer and a motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(6). They argued that they were absolutely immune for conduct taken in connection with the parole revocation hearing, relying on Harper v Jeffries, 808 F.2d 281 (3d Cir. 1986). The district court granted the motion to dismiss, finding that the defendants were absolutely immune and that the allegations of conspiracy were conclusory and unsupported by specific factual averments. This appeal followed.
On appeal, appellant contends that (A) the district court erred in partially dismissing the complaint as frivolous because appellant had stated a cause of action against most of the defendants, and (B) the district court erred in concluding that the parole examiners were absolutely immune from liability.
The district court has discretion under 28 U.S.C. § 1915(d) to dismiss frivolous or malicious in forma pauperis complaints. However, that discretion is "limited 'in every case by the language of the statute itself which restricts its application to complaints found to be frivolous or malicious.'" Williams v. Faulkner, 837 F.2d 304, 306 (7th Cir. 1988), aff'd, Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989). The question whether a complaint is frivolous or malicious under § 1915(d) involves the district court's application and interpretation of legal precepts. We must decide whether the district court applied the correct legal standard in ...