Project Posner

Lead opinion by POSNER

    626 Posner, Chief Judge. A provision added to the Judicial Code by the Prison Litigation Reform Act of 1996 requires the district judge to screen prisoner complaints at the earliest opportunity and dismiss the complaint, in whole or part, if (so far as bears directly on this case) it "fails to state a claim upon which relief can be granted." 28 U.S.C. § 1915A(b)(1). The question, unresolved in this circuit, see Mathis v. New York Life Ins. Co., 133 F.3d 546, 547 (7th Cir. 1998), is what the standard of appellate review of such a dismissal is. In the present case, the merits of which are being decided in an unpublished order entered today, the district judge held that the complaint indeed failed to state a claim.

   It is plain that the review of such a determination should be plenary, that is, without according any deference to the district judge's determination. That is how an ordinary Rule 12(b)(6) dismissal is reviewed, e.g., Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997), and we cannot think of any reason why the identical ground for dismissal under section 1915A(b)(2) should be treated differently. The other circuits to have addressed the question hold that review is indeed plenary, Liner v. Goord, 196 F.3d 132, at *2 (2d Cir. 1999); Cooper v. Schriro, 189 F.3d 781, at *2 (8th Cir. 1999) (per curiam); Ruiz v. United States, 160 F.3d 273, 274 (5th Cir. 1998) (per curiam); Davis v. District of Columbia, 332 U.S. App. D.C. 436, 158 F.3d 1342, 1348 (D.C. Cir. 1998); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997).

   We leave to future cases what the standard of review should be if the district judge bases dismissal on one of the other grounds in section 1915A--that the complaint is "frivolous" or "malicious" or (§ 1915A(b)(2)) that it seeks monetary relief from someone who has immunity. Since the determination in any of these cases is based solely on what the complaint says, and thus involves no factfinding, and is thus a determination of whether the 627 case has any possible merit, appellate review may also be plenary, as suggested in id. at 604. But that we need not decide, and Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, (1990), and Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928 (7th Cir. 1989) (en banc), tug the other way.

   For the reasons stated in the accompanying order, the judgment is affirmed in part and reversed in part, and remanded.