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No Frivolousness Review Allowed When Filing Fee Paid
The court of appeals for the eighth circuit held that a district court erred when it dismissed portions of a pro se prisoner's complaint after the filing fee had been paid. The lower court also erred when it instructed the defendants not to respond to the suit unless instructed to do so by the court. John Hake, a Nebraska state prisoner, filed suit claiming he was unconstitutionally denied a transfer from minimum security to community custody. Hake paid the full filing fee when he filed suit in 1994.
The district court incorrectly believed Hake was proceeding In Forma Pauperis (IFP) and reviewed the complaint for frivolousness pursuant to 28 U.S.C § 1915, the IFP statute that allows for dismissal of frivolous suits before service on the defendants. The court held that portions of the suit were frivolous and gave Hake leave to amend his complaint, which he did. Eventually the compliant was served on the defendants, but with instructions from the court not to reply unless ordered to do so by the court. The court later dismissed Hake's compliant for failure to state a claim under Fed.R.Civ.P. 12(b)(6).
The court of appeals reversed and remanded noting that in Carney v. Houston, 33 F.3d 893 (8th Cir. 1994) it had disapproved a district court practice of dismissing complaints under Fed.R.Civ.P. 12(b)(6) prior to service of process.
"We conclude that ordering service of process but deferring defendant's obligation to respond was not a procedure contemplated by the Federal Rules of Civil Procedure or supported by case law. Implicit in the requirement of service of process before dismissal under Rule 12(b)(6) was that the parties, not the court, would litigate the issues and that those cases would proceed in the ordinary manner. The Rules contemplated that after a fee paid complaint was filed, it was to be served on the defendants; that defendants either answered or filed responsive pleadings, giving notice to plaintiffs of any defenses or pleading deficiencies; and that plaintiffs could then respond or seek leave to amend their pleadings, which leave was to be freely given when justice required." The court faulted the district court for interjecting itself into the adversary process. The court held that issuance of the "no answer" summons was improper and the defendants should have been ordered to respond.
In Carney the court had criticized the same local court rule at issue in this case. "Neither Neitzke nor section 1915(d) authorized courts initially to review claims filed by a fee paying pro se litigant in the same way that they reviewed IFP complaints. We find no support for the district court to have conducted a frivolousness review of non IFP pro se complaints, or to have conducted an initial review of all pro se complaints under Rule 12(b)(6) before service of process and responsive pleadings. Accordingly, we conclude that the procedures set forth in Local Rule 83.10(d)(2) did not comply with the federal rules nor with our circuit's precedents."
The court noted that under the Prison Litigation Reform Act (PLRA) the courts have the authority to screen prisoner suits for frivolousness and other failures to state a claim. The court did not discuss how, or if, this applied to prisoner litigants who, like Hake, have paid the full filing fee. This was also briefly discussed, but not answered, in the companion case of Atkinson v. Bohn, 91 F.3d 1127 (8th Cir. 1996).
Turning to the merits, the court remanded the case to the lower court for a determination of whether, under Sandin v. Connor, 115 S.Ct. 2293 (1995) Hake had a due process liberty interest in being sent to a community prison. See: Hake v. Clarke, 91 F.3d 1129 (8th Cir. 1996).
The district court incorrectly believed Hake was proceeding In Forma Pauperis (IFP) and reviewed the complaint for frivolousness pursuant to 28 U.S.C § 1915, the IFP statute that allows for dismissal of frivolous suits before service on the defendants. The court held that portions of the suit were frivolous and gave Hake leave to amend his complaint, which he did. Eventually the compliant was served on the defendants, but with instructions from the court not to reply unless ordered to do so by the court. The court later dismissed Hake's compliant for failure to state a claim under Fed.R.Civ.P. 12(b)(6).
The court of appeals reversed and remanded noting that in Carney v. Houston, 33 F.3d 893 (8th Cir. 1994) it had disapproved a district court practice of dismissing complaints under Fed.R.Civ.P. 12(b)(6) prior to service of process.
"We conclude that ordering service of process but deferring defendant's obligation to respond was not a procedure contemplated by the Federal Rules of Civil Procedure or supported by case law. Implicit in the requirement of service of process before dismissal under Rule 12(b)(6) was that the parties, not the court, would litigate the issues and that those cases would proceed in the ordinary manner. The Rules contemplated that after a fee paid complaint was filed, it was to be served on the defendants; that defendants either answered or filed responsive pleadings, giving notice to plaintiffs of any defenses or pleading deficiencies; and that plaintiffs could then respond or seek leave to amend their pleadings, which leave was to be freely given when justice required." The court faulted the district court for interjecting itself into the adversary process. The court held that issuance of the "no answer" summons was improper and the defendants should have been ordered to respond.
In Carney the court had criticized the same local court rule at issue in this case. "Neither Neitzke nor section 1915(d) authorized courts initially to review claims filed by a fee paying pro se litigant in the same way that they reviewed IFP complaints. We find no support for the district court to have conducted a frivolousness review of non IFP pro se complaints, or to have conducted an initial review of all pro se complaints under Rule 12(b)(6) before service of process and responsive pleadings. Accordingly, we conclude that the procedures set forth in Local Rule 83.10(d)(2) did not comply with the federal rules nor with our circuit's precedents."
The court noted that under the Prison Litigation Reform Act (PLRA) the courts have the authority to screen prisoner suits for frivolousness and other failures to state a claim. The court did not discuss how, or if, this applied to prisoner litigants who, like Hake, have paid the full filing fee. This was also briefly discussed, but not answered, in the companion case of Atkinson v. Bohn, 91 F.3d 1127 (8th Cir. 1996).
Turning to the merits, the court remanded the case to the lower court for a determination of whether, under Sandin v. Connor, 115 S.Ct. 2293 (1995) Hake had a due process liberty interest in being sent to a community prison. See: Hake v. Clarke, 91 F.3d 1129 (8th Cir. 1996).
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Related legal cases
Atkinson v. Bohn
| Year | 1996 |
|---|---|
| Cite | 91 F.3d 1127 (8th Cir. 1996) |
| Level | Court of Appeals |
Donald Earl Atkinson, Appellant, v. Susan Bohn; Phil Jefferson, Appellees.
No. 95-2598
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
91 F.3d 1127; 1996 U.S. App. ; 35 Fed. R. Serv. 3d (Callaghan) 1348
December 18, 1995, Submitted
August 2, 1996, Filed
PRIOR HISTORY: [**1] Appeal from the United States District Court for the District of Nebraska. 4:94-CV-3332. Honorable Richard G. Kopf, District Judge.
DISPOSITION: Affirmed the judgment of the district court dismissing the complaint without prejudice.
COUNSEL: Counsel who represented the appellant was Donald E. Atkinson of Lincoln, NE.
Counsel who represented the appellee was Laurie Smith Camp of Lincoln, NE.
JUDGES: Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
OPINION: [*1128] PER CURIAM.
Donald Earl Atkinson appeals from the district court's order dismissing sua sponte his 42 U.S.C. § 1983 action against psychologist Susan Bohn, mental health counselor Phil Jefferson, and others unknown. We affirm.
Nebraska inmate Atkinson alleged in his complaint, filed in forma pauperis, that for several years Bohn and Jefferson subjected him to punishment in retaliation for filing a previous lawsuit, and they made false representations to the state juvenile court and state agency officials about his lack of treatment progress, which affected his visitation rights. He also alleged he had to sleep and eat on the floor in his cell, and he was denied access to the courts. Atkinson sought damages and an accurate report of his treatment status.
Pursuant to the district court's Local Rule 83.10(d)(2), the magistrate judge concluded that Atkinson's claims were not frivolous; ordered Atkinson to pay a partial filing fee; ordered the clerk to issue [**2] summonses upon defendants, and the Marshal to serve defendants, but informed defendants they were not required to answer or otherwise respond to the complaint; n1 and reviewed the complaint under Federal Rule of Civil Procedure 12(b)(6) to determine whether Atkinson had stated a claim upon which relief could be granted. n2 The magistrate judge summarized Atkinson's complaint as raising claims of retaliation, denial of visitation, denial of access to the courts, and Eighth Amendment violations relating to his conditions of confinement. The magistrate judge noted several deficiencies in the complaint, and granted Atkinson leave to file an amended complaint.
n1 The summonses contained the following provision:
THE COMPLAINT SERVED WITH THIS SUMMONS IS SUBJECT TO INITIAL REVIEW BY THE COURT. YOU ARE NOT REQUIRED TO ANSWER OF OTHERWISE RESPOND UNLESS AND UNTIL FURTHER NOTIFIED TO DO SO BY THIS COURT. SEE THE COURT FILE FOR FURTHER INFORMATION.
n2 Local Rule 83.10(d)(2) also provides for initial sua sponte review of all pro se complaints pursuant to Fed. R. Civ. P. 12(b)(6), whether they are fee paid or in forma pauperis.
[**3]
Atkinson paid the partial filing fee and amended his complaint, detailing the chronology of retaliatory conduct to which defendants and other mental health personnel allegedly subjected him, and the lack of his meaningful access to the courts. The magistrate judge recommended dismissal under Rule 12(b)(6).
After conducting de novo review, the district court adopted the magistrate judge's report and dismissed the action without prejudice. Atkinson timely appeals, arguing only that his allegations were sufficient to state a retaliation claim.
We conclude that ordering service of process but deferring defendants' obligation to respond, and reviewing complaints under Rule 12(b)(6) prior to service of process and responsive pleadings, were not procedures contemplated by the Federal Rules of Civil Procedure or supported by case law at the time this case was processed in the district court. See Hake v. Clarke, 91 F.3d 1129, 1996 U.S. App. LEXIS 18914, No. 95-1960 (8th Cir. ). We note, however, that under the newly-enacted Prison Litigation Reform Act, a district court may review, before docketing or as soon as practicable after docketing, a complaint brought by a prisoner seeking redress from a governmental entity or officer [**4] to determine if the complaint fails to state a claim upon which relief may be granted. See Prison Litigation Reform Act (Act), Pub. L. No. 104-134, § 805, 110 Stat. 1321, (1996) (to be codified at 28 U.S.C. § 1915A). In addition, the Act provides that a district court may dismiss an action filed in forma pauperis "at any time" if the court determines that the action fails to state a claim on which relief may be granted. See id § 804(a)(5) (amending 28 U.S.C. 1915(d)) (to be codified at 28 U.S.C. § 1915(e)(2)(B)(ii)).
We review de novo a dismissal for failure to state a claim. Ring v. First Interstate Mortgage, Inc., 984 F.2d 924, 926 (8th Cir. 1993). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. [*1129] Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). We also must liberally construe Atkinson's pro se complaint. See Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam).
Upon our careful review of the amended complaint, we agree with the district court that Anderson failed to state a retaliation claim. [**5] Anderson did not allege that defendants were involved in or affected by his previous litigation, and failed to allege sufficient facts upon which a retaliatory animus could be inferred. Cf. Murphy v. Lane, 833 F.2d 106, 108-09 & n.1 (7th Cir. 1987) (per curiam) (allegations that defendants named in lawsuits effected transfer immediately after filing of lawsuits stated retaliation claim). Because Anderson's allegations of retaliation were speculative and conclusory, this claim was properly dismissed.
Accordingly, we affirm the judgment of the district court dismissing the complaint without prejudice.
No. 95-2598
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
91 F.3d 1127; 1996 U.S. App. ; 35 Fed. R. Serv. 3d (Callaghan) 1348
December 18, 1995, Submitted
August 2, 1996, Filed
PRIOR HISTORY: [**1] Appeal from the United States District Court for the District of Nebraska. 4:94-CV-3332. Honorable Richard G. Kopf, District Judge.
DISPOSITION: Affirmed the judgment of the district court dismissing the complaint without prejudice.
COUNSEL: Counsel who represented the appellant was Donald E. Atkinson of Lincoln, NE.
Counsel who represented the appellee was Laurie Smith Camp of Lincoln, NE.
JUDGES: Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
OPINION: [*1128] PER CURIAM.
Donald Earl Atkinson appeals from the district court's order dismissing sua sponte his 42 U.S.C. § 1983 action against psychologist Susan Bohn, mental health counselor Phil Jefferson, and others unknown. We affirm.
Nebraska inmate Atkinson alleged in his complaint, filed in forma pauperis, that for several years Bohn and Jefferson subjected him to punishment in retaliation for filing a previous lawsuit, and they made false representations to the state juvenile court and state agency officials about his lack of treatment progress, which affected his visitation rights. He also alleged he had to sleep and eat on the floor in his cell, and he was denied access to the courts. Atkinson sought damages and an accurate report of his treatment status.
Pursuant to the district court's Local Rule 83.10(d)(2), the magistrate judge concluded that Atkinson's claims were not frivolous; ordered Atkinson to pay a partial filing fee; ordered the clerk to issue [**2] summonses upon defendants, and the Marshal to serve defendants, but informed defendants they were not required to answer or otherwise respond to the complaint; n1 and reviewed the complaint under Federal Rule of Civil Procedure 12(b)(6) to determine whether Atkinson had stated a claim upon which relief could be granted. n2 The magistrate judge summarized Atkinson's complaint as raising claims of retaliation, denial of visitation, denial of access to the courts, and Eighth Amendment violations relating to his conditions of confinement. The magistrate judge noted several deficiencies in the complaint, and granted Atkinson leave to file an amended complaint.
n1 The summonses contained the following provision:
THE COMPLAINT SERVED WITH THIS SUMMONS IS SUBJECT TO INITIAL REVIEW BY THE COURT. YOU ARE NOT REQUIRED TO ANSWER OF OTHERWISE RESPOND UNLESS AND UNTIL FURTHER NOTIFIED TO DO SO BY THIS COURT. SEE THE COURT FILE FOR FURTHER INFORMATION.
n2 Local Rule 83.10(d)(2) also provides for initial sua sponte review of all pro se complaints pursuant to Fed. R. Civ. P. 12(b)(6), whether they are fee paid or in forma pauperis.
[**3]
Atkinson paid the partial filing fee and amended his complaint, detailing the chronology of retaliatory conduct to which defendants and other mental health personnel allegedly subjected him, and the lack of his meaningful access to the courts. The magistrate judge recommended dismissal under Rule 12(b)(6).
After conducting de novo review, the district court adopted the magistrate judge's report and dismissed the action without prejudice. Atkinson timely appeals, arguing only that his allegations were sufficient to state a retaliation claim.
We conclude that ordering service of process but deferring defendants' obligation to respond, and reviewing complaints under Rule 12(b)(6) prior to service of process and responsive pleadings, were not procedures contemplated by the Federal Rules of Civil Procedure or supported by case law at the time this case was processed in the district court. See Hake v. Clarke, 91 F.3d 1129, 1996 U.S. App. LEXIS 18914, No. 95-1960 (8th Cir. ). We note, however, that under the newly-enacted Prison Litigation Reform Act, a district court may review, before docketing or as soon as practicable after docketing, a complaint brought by a prisoner seeking redress from a governmental entity or officer [**4] to determine if the complaint fails to state a claim upon which relief may be granted. See Prison Litigation Reform Act (Act), Pub. L. No. 104-134, § 805, 110 Stat. 1321, (1996) (to be codified at 28 U.S.C. § 1915A). In addition, the Act provides that a district court may dismiss an action filed in forma pauperis "at any time" if the court determines that the action fails to state a claim on which relief may be granted. See id § 804(a)(5) (amending 28 U.S.C. 1915(d)) (to be codified at 28 U.S.C. § 1915(e)(2)(B)(ii)).
We review de novo a dismissal for failure to state a claim. Ring v. First Interstate Mortgage, Inc., 984 F.2d 924, 926 (8th Cir. 1993). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. [*1129] Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). We also must liberally construe Atkinson's pro se complaint. See Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam).
Upon our careful review of the amended complaint, we agree with the district court that Anderson failed to state a retaliation claim. [**5] Anderson did not allege that defendants were involved in or affected by his previous litigation, and failed to allege sufficient facts upon which a retaliatory animus could be inferred. Cf. Murphy v. Lane, 833 F.2d 106, 108-09 & n.1 (7th Cir. 1987) (per curiam) (allegations that defendants named in lawsuits effected transfer immediately after filing of lawsuits stated retaliation claim). Because Anderson's allegations of retaliation were speculative and conclusory, this claim was properly dismissed.
Accordingly, we affirm the judgment of the district court dismissing the complaint without prejudice.
Hake v. Clarke
| Year | 1996 |
|---|---|
| Cite | 91 F.3d 1129 (8th Cir. 1996) |
| Level | Court of Appeals |
--------------------------------------------------------------------------------
Hake v. Clarke, 91 F.3d 1129 (8th Cir. 08/02/1996)
[Editor's note: footnotes (if any) trail the opinion]
[1] U.S. CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT
[2] No. 95-1960
[3] John K. Hake,
[4] Appellant,
v.
[5] Harold W. Clarke, Director, Nebraska Department of Correctional Services; Karen Shortridge, Associate, Director Adult Institutions, Nebraska Department of Correctional Services; Terry Ewing, Security Coordinator, Nebraska Department of Correctional Services; Larry Tewes, Associate Director, Adult Classification and Programs, Nebraska Department of Correctional Services,
[6] Appellees.
[7] Submitted: December 18, 1995
[8] Filed: August 2, 1996
[9] Appeal from the United States District Court for the District of Nebraska.
[PUBLISHED]
[10] Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
[11] PER CURIAM.
[12] John K. Hake appeals from the district court's sua sponte dismissal, under Federal Rule of Civil Procedure 12(b)(6), of his 42 U.S.C. Section(s) 1983 complaint. We reverse and remand for further proceedings.
[13] In April 1994, Nebraska inmate Hake filed a civil rights complaint in forma pauperis (IFP) against Nebraska Department of Correctional Services Director Harold Clarke, Associate Director Karen Shortridge, and the Director's Review Committee members Terry Ewing and Larry Tewes (defendants), claiming he was unconstitutionally denied a transfer from minimum security to community custody. Hake alleged that, after his parole was revoked for alcohol-related reasons in 1991, he was returned to Hastings Correctional Center, and in 1992 he satisfied the requirements for placement in community custody. He alleged that the unit classification committee members supported his reclassification to work release, but that defendants denied him such an assignment without giving him the opportunity to appear before them to rebut any adverse aspects of the record. Hake claimed defendants subjected him to cruel and unusual punishment by punishing him for being an alcoholic, handicapped person; denied him due process; relied on impermissible guidelines to deny him community custody and work release; retaliated against him for exercising his right of access to the courts; and denied him equal protection. Hake sought declaratory relief, and damages. Hake attached copies of correspondence from Shortridge explaining that he was denied community custody because his continued alcohol problem posed a risk to the community. Hake paid the full filing fee in June 1994.
[14] Under the mistaken impression that Hake was proceeding IFP, the magistrate judge reviewed the complaint under 28 U.S.C. Section(s) 1915(d) and the district court's Local Rule 83.10, *fn1 and concluded Hake failed to state a claim upon which relief could be granted, but gave Hake leave to amend his complaint to cure the deficiencies. The magistrate judge also concluded Hake's Eighth Amendment claim was frivolous.
[15] Hake amended his complaint, additionally noting that he had since been reclassified for work release, but that he continued to seek monetary damages for the delay. The magistrate judge reviewed the amended complaint under Local Rule 83.10(d), and suggested in his report and recommendation, inter alia, that Hake had failed to identify which portions of the inmate handbook created a protected liberty interest. Hake filed objections and attached portions of the Adult Inmate Classification Manual (Manual). The district court dismissed the Eighth Amendment claim as frivolous, and concluded the magistrate judge should reconsider his recommended dismissal of the other claims under Rule 12(b)(6) in light of the then-recently decided Carney v. Houston, 33 F.3d 893 (8th Cir. 1994) (per curiam).
[16] Concluding on reconsideration that Hake's equal protection, due process, and retaliation claims were not frivolous, the magistrate judge ordered the issuance of summonses upon all defendants, but informed defendants they were "not required to answer or otherwise respond unless and until further notified to do so by order of this court upon completion of its initial review of plaintiff's non-frivolous claims." Simultaneously with the order for summonses, the magistrate judge issued a report recommending that Hake had abandoned his equal protection and retaliation claims, and that because Hake had not quoted the relevant language which allegedly created a protected liberty interest, his due process claim should be dismissed under Rule 12(b)(6). Hake objected to the report. The summonses were issued approximately two weeks later.
[17] The district court waited until service of process had occurred before ruling on the magistrate judge's report and Hake's objections. The district court conducted de novo review, noted that this now was no longer a sua sponte dismissal prior to service because defendants had been served, and concluded that Hake had failed to state an equal protection or retaliation claim. The court concluded, however, that Hake should be granted leave to submit another amended complaint setting forth his due process claim and should include specific quotations to the regulations or statutes which he believed established a due process right to reclassification.
[18] Hake filed a second amended complaint which incorporated a copy of the Manual. The magistrate judge again recommended Hake's due process claim be dismissed under Rule 12(b)(6), concluding that the Manual did not create a protected liberty interest. Hake again objected. After conducting de novo review, the district court adopted the magistrate judge's report and dismissed the action under Rule 12(b)(6). Hake filed a timely notice of appeal.
[19] On appeal, Hake argues only that the district court erred in denying his due process claim. *fn2 Appellees, in what is their first involvement in the case, argue that the Manual's provisions do not contain language which satisfies the two elements necessary for the creation of a liberty interest under Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 464-65 (1989).
[20] I. Procedural Irregularities
[21] In Carney v. Houston, 33 F.3d at 895, we disapproved the district court's practice of dismissing a complaint under Rule 12(b)(6) prior to service of process, and pointed out that the district court's Local Rule and procedures did not conform to the procedures for reviewing IFP complaints set forth in Gentile v. Missouri Department of Corrections, 986 F.2d 214, 217 (8th Cir. 1993). Understanding that nonfrivolous claims could not be dismissed prior to service of process under Rule 12(b)(6), the magistrate judge here ordered the complaint to be served, and simultaneously recommended dismissal under Rule 12(b)(6) before defendants filed any responsive pleadings.
[22] We conclude that ordering service of process but deferring defendants' obligation to respond was not a procedure contemplated by the Federal Rules of Civil Procedure or supported by case law. Implicit in the requirement of service of process before dismissal under Rule 12(b)(6) was that the parties, not the court, would litigate the issues, and that these cases would proceed in the ordinary manner. The Rules contemplated that after a fee-paid complaint was filed, it was to be served on the defendants; that defendants either answered or filed responsive pleadings, giving notice to plaintiffs of any defenses or pleading deficiencies; and that plaintiffs could then respond or seek leave to amend their pleadings, which leave was to be freely given when justice required. The Rules contemplated a litigant-directed process at the initial stages, but the procedure at issue in this case interjected a review by a judicial officer into the process. Although plaintiffs may have been provided certain "legal advice" which may have proved valuable in saving their actions from ultimate dismissal, this judicial intervention placed the judicial officer in the role of defense counsel, plaintiff's counsel, and judge, and deprived plaintiffs of the "considerable benefits of the adversary proceedings contemplated by the Federal Rules." Neitzke v. Williams, 490 U.S. 319, 330 (1989). To order service of process but not require defendants to respond ignored the spirit, and undermined the purpose, of the service requirement. Thus, we conclude that issuance of "no-answer" summonses was improper, and that defendants should have been directed to answer or file responsive pleadings in accordance with the Federal Rules.
[23] Notwithstanding our admonition in Carney v. Houston, 33 F.3d at 895, that Local Rule 83.10(d) authorized the magistrate judge to act in a manner contrary to the Federal Rules, the district court continued to proceed under it. Neither Neitzke nor section 1915(d) authorized courts initially to review claims filed by a fee-paying pro se litigant in the same way that they reviewed IFP complaints. We find no support for the district court to have conducted a frivolousness review of non-IFP pro se complaints, or to have conducted an initial review of all pro se complaints under Rule 12(b)(6) before service of process and responsive pleadings. *fn3 Accordingly, we conclude that the procedures set forth in Local Rule 83.10(d)(2) did not comply with the Federal Rules nor with our circuit's precedents.
[24] II. Merits
[25] Since the district court's order, the Supreme Court decided Sandin v. Conner, 115 S. Ct. 2293 (1995), which discussed the historical shift in "focus of the liberty interest inquiry to one based on the language of a particular regulation, and not the nature of the deprivation." Id. at 2299. The Court concluded that "[t]he time ha[d] come to return to the due process principles" enunciated in those cases recognizing that States may create liberty interests protected by the Due Process Clause, but generally limiting those interests to freedom from restraint which imposed "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 2300.
[26] Although the due process right Hake asserts here is an alleged right to greater freedom, rather than protection from greater restraint, we believe the same "nature of the interest" analysis is required, and the Thompson test, on which the district court relied in determining whether the State had created a liberty interest, may no longer be good law. Thus, we remand for further proceedings, including an analysis of Sandin in the first instance by the district court.
[27] Accordingly, we reverse and remand this case to the district court for further proceedings consistent with this opinion.
[28] A true copy.
[29] Attest:
[30] CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
***** BEGIN FOOTNOTE(S) HERE *****
[31] The magistrate judge noted that Local Rule 83.10(d)(2) provided for initial sua sponte review of all pro se complaints pursuant to Fed. R. Civ. P. 12(b)(6), whether they are fee-paid or IFP.
[32] 2Although Hake does not appeal the dismissal as frivolous of his Eighth Amendment claim, we note that the district court erred in conducting such a frivolousness review, because Hake had paid the filing fee. See In re Funkhouser, 873 F.2d 1076, 1077 (8th Cir. 1989) (per curiam) (dismissal of section 1915(d) complaint as frivolous after payment of filing fee not contemplated by Federal Rules of Procedure). The section 1915(d) dismissal, however, is not a dismissal on the merits and would not prejudice the filing of a paid complaint making the same allegations. See Denton v. Hernandez, 504 U.S. 25, 34 (1992).
[33] *fn3 Effective April 26, 1996, courts have the authority to screen a prisoner complaint to determine if the complaint is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. See Prison Litigation Reform Act, Pub. L. No. 104-134, Section(s) 805, 110 Stat. 1321, ____ (1996) (to be codified at 28 U.S.C. Section(s) 1915A).
***** END FOOTNOTE(S) HERE *****
19960802
Hake v. Clarke, 91 F.3d 1129 (8th Cir. 08/02/1996)
[Editor's note: footnotes (if any) trail the opinion]
[1] U.S. CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT
[2] No. 95-1960
[3] John K. Hake,
[4] Appellant,
v.
[5] Harold W. Clarke, Director, Nebraska Department of Correctional Services; Karen Shortridge, Associate, Director Adult Institutions, Nebraska Department of Correctional Services; Terry Ewing, Security Coordinator, Nebraska Department of Correctional Services; Larry Tewes, Associate Director, Adult Classification and Programs, Nebraska Department of Correctional Services,
[6] Appellees.
[7] Submitted: December 18, 1995
[8] Filed: August 2, 1996
[9] Appeal from the United States District Court for the District of Nebraska.
[PUBLISHED]
[10] Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
[11] PER CURIAM.
[12] John K. Hake appeals from the district court's sua sponte dismissal, under Federal Rule of Civil Procedure 12(b)(6), of his 42 U.S.C. Section(s) 1983 complaint. We reverse and remand for further proceedings.
[13] In April 1994, Nebraska inmate Hake filed a civil rights complaint in forma pauperis (IFP) against Nebraska Department of Correctional Services Director Harold Clarke, Associate Director Karen Shortridge, and the Director's Review Committee members Terry Ewing and Larry Tewes (defendants), claiming he was unconstitutionally denied a transfer from minimum security to community custody. Hake alleged that, after his parole was revoked for alcohol-related reasons in 1991, he was returned to Hastings Correctional Center, and in 1992 he satisfied the requirements for placement in community custody. He alleged that the unit classification committee members supported his reclassification to work release, but that defendants denied him such an assignment without giving him the opportunity to appear before them to rebut any adverse aspects of the record. Hake claimed defendants subjected him to cruel and unusual punishment by punishing him for being an alcoholic, handicapped person; denied him due process; relied on impermissible guidelines to deny him community custody and work release; retaliated against him for exercising his right of access to the courts; and denied him equal protection. Hake sought declaratory relief, and damages. Hake attached copies of correspondence from Shortridge explaining that he was denied community custody because his continued alcohol problem posed a risk to the community. Hake paid the full filing fee in June 1994.
[14] Under the mistaken impression that Hake was proceeding IFP, the magistrate judge reviewed the complaint under 28 U.S.C. Section(s) 1915(d) and the district court's Local Rule 83.10, *fn1 and concluded Hake failed to state a claim upon which relief could be granted, but gave Hake leave to amend his complaint to cure the deficiencies. The magistrate judge also concluded Hake's Eighth Amendment claim was frivolous.
[15] Hake amended his complaint, additionally noting that he had since been reclassified for work release, but that he continued to seek monetary damages for the delay. The magistrate judge reviewed the amended complaint under Local Rule 83.10(d), and suggested in his report and recommendation, inter alia, that Hake had failed to identify which portions of the inmate handbook created a protected liberty interest. Hake filed objections and attached portions of the Adult Inmate Classification Manual (Manual). The district court dismissed the Eighth Amendment claim as frivolous, and concluded the magistrate judge should reconsider his recommended dismissal of the other claims under Rule 12(b)(6) in light of the then-recently decided Carney v. Houston, 33 F.3d 893 (8th Cir. 1994) (per curiam).
[16] Concluding on reconsideration that Hake's equal protection, due process, and retaliation claims were not frivolous, the magistrate judge ordered the issuance of summonses upon all defendants, but informed defendants they were "not required to answer or otherwise respond unless and until further notified to do so by order of this court upon completion of its initial review of plaintiff's non-frivolous claims." Simultaneously with the order for summonses, the magistrate judge issued a report recommending that Hake had abandoned his equal protection and retaliation claims, and that because Hake had not quoted the relevant language which allegedly created a protected liberty interest, his due process claim should be dismissed under Rule 12(b)(6). Hake objected to the report. The summonses were issued approximately two weeks later.
[17] The district court waited until service of process had occurred before ruling on the magistrate judge's report and Hake's objections. The district court conducted de novo review, noted that this now was no longer a sua sponte dismissal prior to service because defendants had been served, and concluded that Hake had failed to state an equal protection or retaliation claim. The court concluded, however, that Hake should be granted leave to submit another amended complaint setting forth his due process claim and should include specific quotations to the regulations or statutes which he believed established a due process right to reclassification.
[18] Hake filed a second amended complaint which incorporated a copy of the Manual. The magistrate judge again recommended Hake's due process claim be dismissed under Rule 12(b)(6), concluding that the Manual did not create a protected liberty interest. Hake again objected. After conducting de novo review, the district court adopted the magistrate judge's report and dismissed the action under Rule 12(b)(6). Hake filed a timely notice of appeal.
[19] On appeal, Hake argues only that the district court erred in denying his due process claim. *fn2 Appellees, in what is their first involvement in the case, argue that the Manual's provisions do not contain language which satisfies the two elements necessary for the creation of a liberty interest under Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 464-65 (1989).
[20] I. Procedural Irregularities
[21] In Carney v. Houston, 33 F.3d at 895, we disapproved the district court's practice of dismissing a complaint under Rule 12(b)(6) prior to service of process, and pointed out that the district court's Local Rule and procedures did not conform to the procedures for reviewing IFP complaints set forth in Gentile v. Missouri Department of Corrections, 986 F.2d 214, 217 (8th Cir. 1993). Understanding that nonfrivolous claims could not be dismissed prior to service of process under Rule 12(b)(6), the magistrate judge here ordered the complaint to be served, and simultaneously recommended dismissal under Rule 12(b)(6) before defendants filed any responsive pleadings.
[22] We conclude that ordering service of process but deferring defendants' obligation to respond was not a procedure contemplated by the Federal Rules of Civil Procedure or supported by case law. Implicit in the requirement of service of process before dismissal under Rule 12(b)(6) was that the parties, not the court, would litigate the issues, and that these cases would proceed in the ordinary manner. The Rules contemplated that after a fee-paid complaint was filed, it was to be served on the defendants; that defendants either answered or filed responsive pleadings, giving notice to plaintiffs of any defenses or pleading deficiencies; and that plaintiffs could then respond or seek leave to amend their pleadings, which leave was to be freely given when justice required. The Rules contemplated a litigant-directed process at the initial stages, but the procedure at issue in this case interjected a review by a judicial officer into the process. Although plaintiffs may have been provided certain "legal advice" which may have proved valuable in saving their actions from ultimate dismissal, this judicial intervention placed the judicial officer in the role of defense counsel, plaintiff's counsel, and judge, and deprived plaintiffs of the "considerable benefits of the adversary proceedings contemplated by the Federal Rules." Neitzke v. Williams, 490 U.S. 319, 330 (1989). To order service of process but not require defendants to respond ignored the spirit, and undermined the purpose, of the service requirement. Thus, we conclude that issuance of "no-answer" summonses was improper, and that defendants should have been directed to answer or file responsive pleadings in accordance with the Federal Rules.
[23] Notwithstanding our admonition in Carney v. Houston, 33 F.3d at 895, that Local Rule 83.10(d) authorized the magistrate judge to act in a manner contrary to the Federal Rules, the district court continued to proceed under it. Neither Neitzke nor section 1915(d) authorized courts initially to review claims filed by a fee-paying pro se litigant in the same way that they reviewed IFP complaints. We find no support for the district court to have conducted a frivolousness review of non-IFP pro se complaints, or to have conducted an initial review of all pro se complaints under Rule 12(b)(6) before service of process and responsive pleadings. *fn3 Accordingly, we conclude that the procedures set forth in Local Rule 83.10(d)(2) did not comply with the Federal Rules nor with our circuit's precedents.
[24] II. Merits
[25] Since the district court's order, the Supreme Court decided Sandin v. Conner, 115 S. Ct. 2293 (1995), which discussed the historical shift in "focus of the liberty interest inquiry to one based on the language of a particular regulation, and not the nature of the deprivation." Id. at 2299. The Court concluded that "[t]he time ha[d] come to return to the due process principles" enunciated in those cases recognizing that States may create liberty interests protected by the Due Process Clause, but generally limiting those interests to freedom from restraint which imposed "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 2300.
[26] Although the due process right Hake asserts here is an alleged right to greater freedom, rather than protection from greater restraint, we believe the same "nature of the interest" analysis is required, and the Thompson test, on which the district court relied in determining whether the State had created a liberty interest, may no longer be good law. Thus, we remand for further proceedings, including an analysis of Sandin in the first instance by the district court.
[27] Accordingly, we reverse and remand this case to the district court for further proceedings consistent with this opinion.
[28] A true copy.
[29] Attest:
[30] CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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[31] The magistrate judge noted that Local Rule 83.10(d)(2) provided for initial sua sponte review of all pro se complaints pursuant to Fed. R. Civ. P. 12(b)(6), whether they are fee-paid or IFP.
[32] 2Although Hake does not appeal the dismissal as frivolous of his Eighth Amendment claim, we note that the district court erred in conducting such a frivolousness review, because Hake had paid the filing fee. See In re Funkhouser, 873 F.2d 1076, 1077 (8th Cir. 1989) (per curiam) (dismissal of section 1915(d) complaint as frivolous after payment of filing fee not contemplated by Federal Rules of Procedure). The section 1915(d) dismissal, however, is not a dismissal on the merits and would not prejudice the filing of a paid complaint making the same allegations. See Denton v. Hernandez, 504 U.S. 25, 34 (1992).
[33] *fn3 Effective April 26, 1996, courts have the authority to screen a prisoner complaint to determine if the complaint is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. See Prison Litigation Reform Act, Pub. L. No. 104-134, Section(s) 805, 110 Stat. 1321, ____ (1996) (to be codified at 28 U.S.C. Section(s) 1915A).
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