617 F.

2d 1016

McTEAGUE, Dolores, herself and on behalf of her minor

children David and Allen, Appellant,
v.
SOSNOWSKI, Margaret, Individually and as the
Commissioner of
Philadelphia Department of Public Welfare; Boykin, Herbert,
Individually and as the Director, Social Services of the
Philadelphia Department of Public Welfare; Hoppes, Ronald,
Individually and as a Caseworker with the Philadelphia
Department of Public Welfare; Wright, Juanita, Individually
and as a Supervising Caseworker with the Philadelphia
Department of Public Welfare; O'Bannon, Secretary,
Pennsylvania Department of Public Welfare.
No. 79-1383.

United States Court of Appeals,

Third Circuit.
Argued Nov. 16, 1979.
Decided March 25, 1980.

Richard J. Gold, Ann Shalleck (argued), Stephen F. Gold, Community

Legal Services Law Center North Central, Philadelphia, Pa., for appellant.
Carl Vaccaro, Asst. Atty. Gen., John O. J. Shellenberger, 3rd, Deputy
Atty. Gen., Eastern Regional Director, Edward G. Biester, Jr., Atty. Gen.,
Philadelphia, Pa., for appellee O'Bannon.
Mary Rose Cunningham (argued), Edward V. Schulgen, Asst. City Sol.,
Dept. of Public Welfare, Philadelphia, Pa., for appellees Sosnowski,
Boykin, Hoppes and Wright.
Before GIBBONS, A. LEON HIGGINBOTHAM, Jr., and SLOVITER,
Circuit Judges.
OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

Federal courts have served as a haven for children and families when wellmeaning government authorities injure them in violation of constitutional and
statutory rights. Pursuing this long revered tradition Dolores McTeague sought
relief in the federal courts, alleging that her family's "fundamental rights to
family integrity" had been destroyed. The district court dismissed her action,
acting under the aegis of a federal statute that provides for the early dismissal
of frivolous or malicious in forma pauperis complaints, 28 U.S.C. 1915(d).
Whether or not she will be successful ultimately in pursuing her claim, the
claim is neither frivolous nor malicious. We will therefore reverse the order of
the district court and will remand for further proceedings.

I.
2

The McTeague family problems were first brought to the attention of state
authorities in October 1977 when Dolores McTeague, concerned because of her
husband's drug consumption and his violence towards her and two of her three
children, sought and obtained help from the Philadelphia Police Department.1
In December, as a result of her actions, a hearing was held in the Pennsylvania
Court of Common Pleas to decide whether state intervention would be
necessary to protect the two children, David and Allen. The court ordered that
David and Allen should remain with their mother,2 that the father should
receive psychiatric treatment, and that the case would remain within the
protective supervision of the Family Court.

The next few months were difficult for the McTeague family. Mrs. McTeague,
separated from her husband, was unable to locate suitable housing for herself
and her three children. In April 1978 she sought social service help from the
Medical College of Pennsylvania. At the suggestion of a social worker with the
Medical College, she went to the Philadelphia Department of Public Welfare
(DPW) to arrange for temporary foster care for all three of her children. Based
on assurances from DPW that her children would be returned whenever she
found suitable housing, she signed a voluntary placement agreement. She was
told that as a condition of the placement she would have to relinquish her
children for a minimum of six months. Knowing no alternative, she submitted
to the requirement.

In May 1978, the Family Court held a hearing on the continued supervision of
David and Allen. Apparently this hearing was not scheduled in response to the
voluntary foster placement, but was the result of the supervision ordered in

December 1977. Nevertheless, the voluntary foster placement was the subject
of the proceedings and was the basis of that court's decision to order David and
Allen "dependent," thereby removing them from Mrs. McTeague's custody.
The two children were committed to the custody of DPW.
5

In September, just before the expiration of the six month period, Mrs.
McTeague informed DPW that she had located suitable housing and wished to
have her children back. Although DPW acknowledged that the two problems
which had led to the dependency order her housing problem and the father's
abusive behavior had been solved, her requests were denied without
explanation.3

In January 1979 she filed a complaint in federal court on behalf of herself,

David, and Allen. Requesting permission to proceed in forma pauperis, she
sought to challenge two aspects of the Commonwealth's actions. First, she
asserted that the Commonwealth had not provided her with adequate assistance
once it had decided to intervene in the family's affairs. She alleged, inter alia,
that alternatives to foster care which were less intrusive on the family had not
been explored, that no effort had been made to preserve or unite the family, and
that no supportive services which may have strengthened the family had been
provided. Second, she attacked the adjudicatory process in which she lost legal
custody of two of her children. She alleged that she had been denied the right to
counsel because she was not represented by counsel at either the December
1977 or the May 1978 hearing and that at neither hearing had she made a
knowing and voluntary waiver. She also alleged that she had not been given her
due process right of notice because she was not told that her own actions would
be the subject of the hearings. She asserted that the Commonwealth acted in
violation of the First and Fourteenth Amendments to the United States
Constitution and 42 U.S.C. 1983; in violation of Title XX of the Social
Security Act, 42 U.S.C. 1397-1397f, Title IV the Social Security Act, 42
U.S.C. 601-622, and federal regulations implementing these statutes; in
violation of the Pennsylvania Juvenile Act, Pa.Stat.Ann. tit. 11, 50-101 50337 (Purdon);4 and in violation of her common law rights. She named as
defendants numerous city and state officials who she claimed were responsible
for the violations of these rights. She sought declaratory, injunctive, and
monetary relief.

Before receiving an answer from any of the defendants or receiving briefs from
any of the parties, the district court granted her request to proceed in forma
pauperis and dismissed the complaint sua sponte. The court adopted a
Magistrate's Report which had urged dismissal, citing abstention principles
outlined in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669

(1971), Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977),
and Salvati v. Dale, 364 F.Supp. 691 (W.D.Pa.1973). Mrs. McTeague appeals
from the dismissal.5
II.
8

Since 1892, when the predecessor to 28 U.S.C. 1915 was enacted, 6 the doors
of the federal courts have been open to the poor and the rich alike. Under this
statute an indigent individual may initiate a claim or defend his life or property,
without an obligation to pay the court costs that most parties must bear, and in
some instances with the assistance of court-appointed counsel. With Section
1915 Congress has guaranteed "that no citizen shall be denied an opportunity to
commence, prosecute, or defend an action . . . solely because his poverty makes
it impossible for him to pay or secure the costs" of litigation. Adkins v. E. I.
DuPont de Nemours & Co., Inc., 335 U.S. 331, 342, 69 S.Ct. 85, 90, 93 L.Ed.
43 (1948).

For many, Section 1915 has been the only route to justice and our courts have
long honored in forma pauperis complaints. Some in forma pauperis cases have
restructured the fundamental framework for our system of justice. See, e.g.,
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See
generally Lewis, Gideon's Trumpet (1964) (outlining the history of the Gideon
decision); The Foundation of the Federal Bar Association, Equal Justice Under
Law, 95, 105 (1965). Cf. Sup.Ct.R. 53.

10

When Congress opened the door to in forma pauperis petitions, it was

concerned that the removal of the cost barrier might result in a tidalwave of
frivolous or malicious motions filed by persons who gave no pause before
crossing the threshold of the courthouse door. Concerned not only with the
court congestion which might result, but also with the financial burden the
public would have to bear because of these claims, Congress included in
Section 1915 a provision permitting the early dismissal of some claims.
Fletcher v. Young, 222 F.2d 222, 224 (4th Cir.), cert. denied, 350 U.S. 916, 76
S.Ct. 201, 100 L.Ed. 802 (1955). Thus, Section 1915(d) states that "the court . .
. may dismiss the case if . . . satisfied that the action is frivolous or malicious."7
This provision does not, however, permit a cursory treatment of meritorious
complaints. When a viable complaint is filed in forma pauperis, the pauper
must be treated like all other litigants in the decision to dismiss. Otherwise, the
scales of justice will be tilted against those who by the coincidence of life are
poor.

11

In this case the district court dismissed Mrs. McTeague's complaint before

receiving answers from the defendants and before briefing, reasoning that under
Younger v. Harris the claims should be adjudicated in a state forum. We do not
agree that the answer to the choice of forum issue was so obvious that dismissal
was warranted under Section 1915(d). It is unquestionably true that a dismissal
referring to the constitutional and statutory claims raised by Mrs. McTeague's
complaint would not have met the Section 1915(d) requirement of frivolity or
maliciousness. A dismissal on Younger v. Harris grounds is a disposition on
the merits of a claim for equitable relief and is no more appropriate for
summary treatment than any other disposition on the merits. No fair reading of
the cases would suggest that Mrs. McTeague's claim was frivolous.
12

First, our federal courts have been used by countless numbers of plaintiffs who
have challenged state intrusions into the family unit. Many of these plaintiffs
have been successful in establishing that the challenged state intrusion violated
federal constitutional law or federal statutory law. E. g., Pierce v. Society of
Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (state may not
prevent parents from enrolling their children in private schools); Stanley v.
Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (state must
provide unwed father a hearing before denying him custody of his child after
the mother's death); Shea v. Vialpando, 416 U.S. 251, 94 S.Ct. 1746, 40
L.Ed.2d 120 (1974) (AFDC program giving standardized treatment of
employment expenses conflicts with federal statute's work incentive); King v.
Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968) (state regulations
denying AFDC benefits to children whose mother "cohabits" with a man not
obligated to provide for their support are invalid).

13

Second, it is not obvious whether the abstention principles on which the district
court relied are applicable to this case. Indeed at the time the district court
dismissed the complaint, February 1979, the issue was even more difficult. At
that time the legal community was seriously debating the extent to which
Younger v. Harris should be applied to civil cases. While the Supreme Court's
decisions in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d
482 (1975), Juidice v. Vail and Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct.
1911, 52 L.Ed.2d 486 (1977), presaged a broad view of the abstention doctrine,
some lower courts had refused to abstain in certain civil contexts. E. g., New
Jersey Education Association v. Burke, 579 F.2d 764 (3d Cir.) cert. denied 439
U.S. 894, 99 S.Ct. 252, 58 L.Ed.2d 239 (1978). Indeed, six days after the
McTeague complaint was dismissed, the Supreme Court heard oral argument in
a challenge to a decision by a distinguished three-judge panel in Texas which
had refused to abstain from considering a similar case brought in a child abuse
context. Sims v. Dept. of Public Welfare of the State of Texas, 438 F.Supp.
1179 (S.D.Texas 1977), later reversed, Moore v. Sims, 442 U.S. 415, 99 S.Ct.

2371, 60 L.Ed.2d 994 (1979).

14

In June 1979, in a 5-4 decision, the Supreme Court reversed the three-judge
panel. While the subsequent reversal certainly resolves much of the abstention
debate, it in no way affects the issue of the difficulty of the abstention question
at the time the district court acted. It only suggests that the three-judge panel,
after struggling with a difficult question, did not reach the "proper" conclusion,
and that abstention questions raised after June 1979 may be more easily
resolved. Certainly a litigant who makes a claim which is supported by a
decision of such distinguished jurists should not have her suit categorized as
one which is so frivolous that it warrants dismissal under Section 1915(d).8

15

Third, dismissal under Section 1915(d) is inappropriate, even in light of the

reversal in Moore v. Sims, because a number of factual and legal issues are
unresolved and they must be addressed before there can be any decision on
abstention. For example, the parties are in dispute about whether there is a state
proceeding pending or whether the Family Court's order was final. Younger v.
Harris and Moore v. Sims rely heavily on the existence of a pending state
proceeding which might be interfered with by a federal court order. If no
proceeding is pending, these comity concerns are not implicated and federal
action would be appropriate. See Wooley v. Maynard, 430 U.S. 705, 97 S.Ct.
1428, 51 L.Ed.2d 752 (1977) (Prior state proceeding does not preclude
litigation of federal court suit seeking prospective declaratory and injunctive
relief). It is also not clear whether, even if pending, the state proceeding would
bar federal action. The appellant argues that she can neither challenge the
procedures used at either the December or May hearing in the state proceeding
nor can she raise the challenge to the quality of the placement which has
already taken place. She asserts that at most she can address the issue of her
children's future commitment and custody. If deference to the state proceeding
means that she will be unable to raise her concerns, abstention may be
inappropriate. Cf. Moore v. Sims, 99 S.Ct. at 2378 (holding that abstention in a
child abuse case was appropriate where the issues raised by the plaintiff's
complaint could have been raised in a pending state action). Thus, the district
court erred by dismissing the complaint before it had answers to these
questions.

16

On remand the abstention issue will be further complicated because the

Commonwealth has returned David and Allen to Mrs. McTeague during this
appeal. As a result, Mrs. McTeague has now abandoned her request for
injunctive relief and seeks only declaratory and monetary relief. This change
has not affected our decision, and of course played no part in the district court's
initial decision. However, it must be considered on remand as the abstention

doctrine deals primarily with actions where injunctive relief was requested.
17

In conclusion, we hold that the district court erred by finding Mrs. McTeague's
complaint appropriate for dismissal under Section 1915(d). We will therefore
reverse and remand for further proceedings consistent with this opinion.

18

Costs shall be borne by the appellees.

Because the district court dismissed the action before receiving papers from the
defendants, our summary of the facts is based upon the plaintiff's complaint and
the briefs filed in this court. See Souder v. McGuire, 516 F.2d 820, 821 (3d Cir.
1975)

The third child, Brian, Jr., was not the subject of these proceedings since he had
not been abused by his father. Brian, Jr. is not a party to this suit

There is no suggestion from the record that Mrs. McTeague had abandoned her
children during the period they were in foster care. Indeed, among her
complaints is her objection to the state's restrictions on her visitation rights. For
example, she alleges that she was forced to agree to a three month moratorium
on visits with her son Allen because DPW threatened to place Allen in a "less
desirable foster home" if she did not agree to a reduction. Plaintiff's Complaint,
PP 56, 57, reproduced in App., at 11a

Although the complaint alleges violations of the Pennsylvania Juvenile Act, we

note that this Act was repealed by the Act of April 28, 1978, P.L. 202 No. 53,
and was reenacted in an amended form. The reenactment is codified at
Pa.Stat.Ann. tit. 42 6301-6365 (Purdon 1979 Supp.)

She no longer pursues her request for injunctive relief, because her children
were returned during the pendency of this appeal

The original provision was enacted by the Act of July 20, 1892, Pub.L.No.209,
27 Stat. 252

28 U.S.C. 1915(d) provides in full:

(d) The court may request an attorney to represent any such person unable to
employ counsel and may dismiss the case if the allegation of poverty is untrue,
or if satisfied that the action is frivolous or malicious.

Though it is a well-recognized principle that we, as an appellate court, are "to

apply the law in effect at the time (we) render (our) decision, unless doing so
would result in manifest injustice or there is statutory direction or legislative
history to the contrary." Bradley v. School Board of City of Richmond, 416
U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974), a plaintiff's claim
cannot be dismissed as frivolous when at the time of the trial judge's decision
many judges had expressed in their written opinions that the plaintiff's views
were correct