Griffiths v. Amtrak ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1591
JOHN GRIFFITHS,
Plaintiff, Appellant,
v.
AMTRAK,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
James J. Fusillo on brief for appellant.
August 6, 2004
Per Curiam. In this retaliatory discharge case, the pro se
plaintiff appeals from the district court's sua sponte dismissal of
his complaint for lack of subject matter jurisdiction. We vacate
the judgment and remand the case to the district court for further
proceedings.
BACKGROUND
Plaintiff filed a hand-written complaint alleging, in essence,
that defendant Amtrak discharged him in retaliation for complaining
to the department of transportation about an unsafe crossing gate.
In his complaint, plaintiff alleged that the district court had
jurisdiction under 28 U.S.C. § 1332 (diversity jurisdiction) but
also alleged that both he and Amtrak are "residents" of
Massachusetts.
In reviewing the complaint in the course of allowing
plaintiff's application to proceed in forma pauperis, the district
court determined, sua sponte, that "there is no diversity of
citizenship, and the Complaint discloses no other basis for the
exercise of federal jurisdiction." For that reason, the court
dismissed the case "without prejudice" and directed that
"[j]udgment may be entered accordingly." Id. The same day, the
clerk entered judgment dismissing the complaint, but "with
prejudice." This appeal followed. Br. Add. 3.
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DISCUSSION
As we have previously warned, "[c]ourts must move cautiously
when dismissing a complaint sua sponte." Clorox Co. Puerto Rico v.
Proctor & Gamble Commercial Co., 228 F.3d 24, 30 (1st Cir. 2000).
Although "a district court may, in appropriate circumstances, note
the inadequacy of the complaint and, on its own initiative, dismiss
the complaint, . . . a court may not do so without at least giving
plaintiffs notice of the proposed action and affording them an
opportunity to address the issue." Literature, Inc. v. Quinn, 482
F.2d 372, 374 (1st Cir. 1973) (dicta). While this rule has
exceptions, none is applicable here.
Although district courts are required to dismiss an action
"[w]henever it appears by suggestion of the parties or otherwise
that the court lacks jurisdiction of the subject matter," Fed. R.
Civ. P. 12(h)(3), "[d]efective allegations of jurisdiction may be
amended," 28 U.S.C. § 1653; and such amendments may be made without
leave of court, where, as here, no responsive pleading has been
filed. Fed. R. Civ. P. 15(a). By dismissing plaintiff's
complaint, sua sponte, without giving him prior notice of the
defect in his jurisdictional allegation, the district court
deprived the plaintiff of his right to amend the complaint to cure
the defect. The clerk then compounded the problem by entering
judgment with prejudice--rather than without prejudice as the court
directed and as is appropriate for dismissals on jurisdictional
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grounds, 2 Moore's Fed. Prac. 3d § 12.30[2] at 12-36--thereby
precluding plaintiff from correcting his error by filing a new
action.
Nor does plaintiff's in forma pauperis status afford a basis
for this dismissal. Sua sponte dismissals of in forma pauperis
complaints are authorized only where "the court determines that
. . . the action . . . (i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief." 28 U.S.C. 1915(e)(2)(B). None of those determinations
was made here, nor does it appear that any such determinations
would have been warranted on the face of the complaint. See
Fredyma v. A T & T Network Sys., Inc., 935 F.2d 368, 368 (1st Cir.
1991) (per curiam) (explaining that, under § 1915(e), "a sua sponte
dismissal without notice . . . is appropriate only if a claim is
premised upon 'an indisputably meritless legal theory' or 'factual
allegations [that] are clearly baseless.'") (citing Neitzke v.
Williams, 490 U.S. 319, 325, 327 (1989)).
Accordingly, the judgment of dismissal is vacated and the case
is remanded to the district court for further proceedings.
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