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Tingler v. Marshall

United States Court of Appeals, Sixth Circuit
Sep 15, 1983
716 F.2d 1109 (6th Cir. 1983)

Summary

holding that district court may not dismiss a plaintiff's suit sua sponte unless the court first gives the plaintiff the opportunity to amend or correct the deficiencies in the complaint, and recognizing that sua sponte dismissals "are not favored because they are unfair to the litigants and ultimately waste, rather than save judicial resources"

Summary of this case from Keller v. Robertson Cnty. Det. Facility

Opinion

No. 81-3017.

Argued May 23, 1983.

Decided September 15, 1983.

Richard L. Tingler, Jr., pro se.

Dexter W. Clark, Rocky River, Ohio, Steven M. Fitten (argued), Dayton, Ohio, for plaintiff-appellant.

Joseph C. Mastrangelo, Asst. Atty. Gen., Columbus, Ohio, for defendant-appellee.

Appeal from the United States District Court for the Southern District of Ohio.

Before CONTIE, Circuit Judge, BROWN, Senior Circuit Judge, and NEESE, Senior District Judge.

The Honorable C.G. Neese, Senior Judge, retired U.S. District Judge for the Eastern District of Tennessee, sitting by designation.


The question before us is whether the district court's sua sponte dismissal of the plaintiff's complaint on the merits, prior to service of the complaint upon the defendant and without providing the plaintiff an opportunity to amend his complaint or otherwise respond, was proper. We adhere to our previous statements in Brown v. Strickler, 422 F.2d 1000 (6th Cir. 1970) and Martin v. Johnson, 471 F.2d 704 (6th Cir. 1973) that such sua sponte dismissals are not favored and we vacate the district court's judgment and remand the case.

I.

On November 25, 1980, the plaintiff, a prisoner at the Southern Ohio Correctional Facility, filed a 42 U.S.C. § 1983 action alleging that his constitutional rights had been infringed by the prison's policy of conducting random strip searches of prison visitors. The plaintiff's pro se complaint alleged that a female visitor of his was compelled to submit to a random strip search. The plaintiff contended that such searches, unsupported by probable cause, constituted an unreasonable restriction upon his right to free association. He sought declaratory and injunctive relief.

The same day that the complaint was filed, the district court dismissed the action sua sponte on the ground that the restrictions upon visitors were proper under Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The complaint was not served upon the defendant and the parties were not notified of the district court's intention to dismiss the complaint.

The district court's order is reproduced in full below:

This matter is before the Court for consideration of a complaint pursuant to 42 U.S.C. § 1983. In his complaint plaintiff complains of restrictions placed upon visitors to him at the Southern Ohio Correctional Institution. The Supreme Court of the United States in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) has determined that matters such as this reside within the sound discretion of the prison authorities and do not give rise to a complaint under 42 U.S.C. § 1983.

Based upon such authority the complaint herein is hereby DISMISSED.

II.

Though the parties briefed and argued several issues before this court, we only address the plaintiff's claim that the district court's sua sponte dismissal of his complaint was improper. We first note that since the district court dismissed this action on the merits, we have no occasion to consider the propriety of sua sponte dismissals of in forma pauperis claims as frivolous under the 28 U.S.C. § 1915(d). Nor do we address the propriety of sua sponte dismissals for failure to prosecute, see, e.g., Lyles v. Commercial Lovelace Motor Freight, Inc., 684 F.2d 501 (7th Cir. 1982), or sua sponte dismissals in cases where the district court clearly lacks jurisdiction. See Brown v. Strickler, 422 F.2d 1000 (6th Cir. 1970). Rather, the narrow issue which we address involves sua sponte dismissals on the merits, prior to service of the complaint and without notice of the proposed dismissal to the plaintiff to allow him to respond.

We recently noted that "[f]rivolity, like obscenity, is often difficult to define." WSM, Inc. v. Tennessee Sales Co., 709 F.2d 1084 (6th Cir. 1983). However in Malone v. Colyer, 710 F.2d 258 (6th Cir. 1982), we did accept the difficult task of defining when an action is "frivolous" within the meaning of 28 U.S.C. § 1915(d).

Such sua sponte dismissals are not in accordance with our traditional adversarial system of justice because they cast the district court in the role of "a proponent rather than an independent entity." Franklin v. State of Oregon, State Welfare Division, 662 F.2d 1337, 1342 (9th Cir. 1981). Moreover, such dismissals are not favored because they are unfair to the litigants and ultimately waste, rather than save judicial resources. Id. Lewis v. State of New York, 547 F.2d 4 (2d Cir. 1976).

Plaintiffs are prejudiced by the procedure followed by the district court in this case because, unlike with motions to dismiss filed by defendants, they have no opportunity to amend their complaints or make legal arguments against the dismissal. The prejudice is particularly acute with respect to pro se plaintiffs, like the plaintiff in this case, who are generally unskilled in the art of pleading.

Sua sponte dismissals without service or notice are likewise unfair to defendants because they deny defendants "the full panoply of litigation strategies available to the typical defendant." Lewis, 547 F.2d at 6. In these cases, the defendants must, on appeal, choose between not participating, see Lewis, supra, or, as in this case, making arguments based upon factual assertions which are not in the record. Such facts are not in the record since the defendant was never served with the complaint and did not have the opportunity to file an answer or any other pleadings.

If the defendants do not participate the court of appeals is faced with an appeal in which only the appellant participates. Such an occurrence hampers the court's ability to make a reasoned decision because there is no adversarial presentation.

Finally, the sua sponte dismissal, most likely intended by the district court as a device for judicial economy, actually results in the waste of judicial resources. Lewis, 547 F.2d at 4. This action was filed and dismissed in 1980 and now, over two years later, we are faced with an appeal which has no record other than the plaintiff's complaint and the district court's brief order dismissing the case. The lack of any factual record not only hampers the defendant in making his most effective arguments but also prevents us from making any decision except one based upon broad legal grounds. For example, the defendant argues that the plaintiff's complaint is invalid because his female visitor was not selected randomly to be searched but rather was only searched after she failed to pass a metal detector test. The defendant also maintains that the plaintiff's right to visitation, if in fact he has such a right, was not substantially affected since his female visitor visited him 44 times after she was searched. These facts, if proven, may have provided the basis for dismissal of the plaintiff's complaint on narrow grounds. Since such facts are not in the record, however, we may only affirm the district court's decision on the broadest legal grounds. Because such decision-making is inconsistent with the proper function of an appellate court, we are compelled to remand the case to the district court.

We cite the defendant's arguments only to illustrate the possibility that a decision could have been rendered on narrow grounds. We make no comment on the validity of those arguments.

Under our supervisory power, we hold that a district court faced with a complaint which it believes may be subject to dismissal must: (1) allow service of the complaint upon the defendant; (2) notify all parties of its intent to dismiss the complaint; (3) give the plaintiff a chance to either amend his complaint or respond to the reasons stated by the district court in its notice of intended sua sponte dismissal; (4) give the defendant a chance to respond or file an answer or motions; and (5) if the claim is dismissed, state its reasons for the dismissal.

The judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this opinion. We intimate no view on the merits of the plaintiff's claim.


As the District Judge's decision is vacated and this matter remanded under the supervisory powers of this Court, I concur, understanding, as I do, that the majority finds in the complaint a claim by this prisoner of an unreasonable restriction by his custodians upon his right to free association under the Constitution, First Amendment.


Summaries of

Tingler v. Marshall

United States Court of Appeals, Sixth Circuit
Sep 15, 1983
716 F.2d 1109 (6th Cir. 1983)

holding that district court may not dismiss a plaintiff's suit sua sponte unless the court first gives the plaintiff the opportunity to amend or correct the deficiencies in the complaint, and recognizing that sua sponte dismissals "are not favored because they are unfair to the litigants and ultimately waste, rather than save judicial resources"

Summary of this case from Keller v. Robertson Cnty. Det. Facility

holding that district court may not dismiss a plaintiff's suit sua sponte unless the court first gives the plaintiff the opportunity to amend or correct the deficiencies in the complaint, and recognizing that sua sponte dismissals "are not favored because they are unfair to the litigants and ultimately waste, rather than save judicial resources"

Summary of this case from Ussery v. 17th Judicial Dist. DTF

establishing procedure for sua sponte dismissal of complaints

Summary of this case from Thomas v. Arn

In Tingler, this court indicated that its holding requiring prior notice was limited and applied only to sua sponte dismissals on the merits.

Summary of this case from McLaughlin v. Cotner

requiring service on defendants, notice of the court's intent to dismiss, the court to give plaintiff and defendant an opportunity to respond, and the court to state reasons for dismissal

Summary of this case from Ricketts v. Midwest Nat. Bank

In Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983), we held that a district court could not sua sponte dismiss a complaint on the merits before it is served on the defendants and without prior notice to the plaintiff.

Summary of this case from Harris v. Johnson

In Tingler, we reversed a district judge's sua sponte dismissal — based on what he believed to be clear Supreme Court precedent — of a prisoner complaint.

Summary of this case from Morrison v. Tomano

In Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983), we held that a district court may not sua sponte dismiss a complaint without allowing service of the complaint on the defendant and permitting the plaintiff to amend the complaint or respond to the court's notice of intent to dismiss.

Summary of this case from Spruytte v. Walters

In Tingler, this court took a dim view of sua sponte dismissals on the merits prior to service of the complaint and without notice of the proposed dismissal to the plaintiff to allow him to respond.

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In Tingler, the Sixth Circuit found that a district court's sua sponte dismissal of a plaintiff's complaint on the merits, prior to service on defendant and without opportunity to amend, was improper.

Summary of this case from Hawthorne-Burdine v. Oakland Univ.

requiring a district court to give unambiguous notice of its own motion to dismiss and to notify parties of a reasonable date by which they must respond

Summary of this case from Huff v. First Energy Corp.

requiring a district court to give unambiguous notice of its own motion to dismiss and to notify parties of a reasonable date by which they must respond

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requiring a district court to give unambiguous notice of its own motion to dismiss and to notify parties of a reasonable date by which they must respond

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requiring a district court to give unambiguous notice of its own motion to dismiss and to notify parties of a reasonable date by which they must respond

Summary of this case from Deamiches v. Ohio Dep't of Rehab. & Corr.

requiring service on defendants, notice of the court's intent to dismiss, the court to give plaintiff and defendant opportunity to respond, and the court to state reasons for dismissal

Summary of this case from Mayhew v. ILA Local 1771

In Tingler v. Marshall, 716 F. 2d 1109 (6th Cir. 1983), the Court of Appeals established a procedure for sua sponte dismissals of claims which cannot survive a motion to dismiss.

Summary of this case from Howard v. Supreme Court of Ohio

In Tingler, we stated that a district court may not sua sponte dismiss a plaintiff's suit unless the court first gives the plaintiff the opportunity to amend or correct the deficiencies in the complaint.

Summary of this case from Davis v. Bante

In Tingler, we stated that a district court may not sua sponte dismiss a plaintiff's suit unless the court first gives the plaintiff the opportunity to amend or correct the deficiencies in the complaint.

Summary of this case from U.S. ex Rel. Donaldson v. Conservation Resource Alliance

discussing dismissal of case on the merits

Summary of this case from State ex Rel. Schatz v. McCaughtry

requiring that: the complaint be served on defendants; notice be given to parties of the court's intent to dismiss; plaintiff and defendant be afforded an opportunity to respond; and if the case is dismissed, the court must state the reasons therefor

Summary of this case from Rubins v. Plummer
Case details for

Tingler v. Marshall

Case Details

Full title:RICHARD L. TINGLER, JR., PLAINTIFF-APPELLANT, v. RONALD MARSHALL…

Court:United States Court of Appeals, Sixth Circuit

Date published: Sep 15, 1983

Citations

716 F.2d 1109 (6th Cir. 1983)

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