Oatess v. Sobolevitch , 914 F.2d 428 ( 1990 )

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal from the sua sponte Fed.R.Civ.P. 12(b)(6) dismissal by the district court of a pro se civil rights complaint after the grant to the plaintiff of leave to proceed in forma pauperis, 28 U.S.C. § 1915(a), but before service of the complaint upon the defendants. The appeal requires us to decide whether the district court properly dismissed the complaint under these circumstances. We conclude that it did not. We will therefore vacate the district court’s order and remand for further proceedings.

I.

Plaintiff, Dale Oatess, is an inmate at the State Correctional Institution at Cresson, Pennsylvania. On June 12, 1989, he submitted his civil rights complaint and motion to proceed in forma pauperis to the District Court for the Western District of Pennsylvania.¹ Oatess’ complaint alleged that defendants had conspired to ensure the dismissal of a civil case which he had filed in the Court of Common Pleas of Erie County, Pennsylvania. The defendants in the federal suit were two state court judges, a prosecuting attorney, several court administrators, and several private attorneys.

The district court referred the case to a United States Magistrate under 28 U.S.C. § 636(b). After granting plaintiff leave to proceed in forma 'pauperis, the magistrate filed a report, recommending dismissal of the complaint for failure to state a claim upon which relief could be granted.² The magistrate notified Oatess, as required under 28 U.S.C. § 636(b)(1), that he had ten days in which to file exceptions to the report. Oatess filed timely exceptions, which were reviewed by the magistrate and found to be without merit.³ The district court adopted the report and recommendation, and dismissed the complaint, not as legally frivolous under 28 U.S.C. § 1915(d), but for failure to state a claim upon which relief could be granted, under Rule 12(b)(6). There is no indication in the record that summonses were ever issued to plaintiff or complaints served upon defendants. This appeal followed.⁴

II.

A complaint that is filed informa pauperis under 28 U.S.C. § 1915(a) is subject to dismissal by the district court under 28 U.S.C. § 1915(d) only if it is frivolous or malicious. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). As Neitzke made clear, a complaint may fail to state a claim upon which relief may be granted under Rule 12(b)(6) but not be frivolous within the meaning of § 1915(d). Id. at 1829. In the ordinary course, if the complaint is not frivolous so as to warrant dismissal at the initiation of the suit under § 1915(d), it should proceed as any civil case would and be governed by the usual civil procedures, including Rule 12(b)(6) if appropriate. This reasoning is implicit in Roman v. Jeffes, 904 F.2d 192 (3d Cir.1990), where we ruled that a district court could not dismiss an action under 28 U.S.C. § 1915(d) after the granting of in forma pauperis status and the service of the complaint. As we discuss below, this reasoning also leads us to the conclusion that a district court cannot sua sponte dismiss a complaint under Rule 12(b)(6) before service of process.⁵

While there are no time constraints in Rule 12(b)(6) for the filing of motions or the dismissal of complaints, other procedural requirements suggest that service of process first be accomplished before consideration of dismissal. For instance, Fed. R.Civ.P. 4(a) commands the clerk to issue forthwith a summons to plaintiff upon the filing of a complaint.⁶ The requirement of 28 U.S.C. § 1915(c)⁷ that the court shall serve all process also indicates that once leave to proceed in forma pauperis is granted, and the complaint is not dismissed as frivolous under 28 U.S.C. § 1915(d), the case should go forward. Dismissal of the complaint under Rule 12(b)(6) prior to service is inconsistent with these rules, and it interferes with the orderly process of the case. As we explained in Wilson v. Rackmill, 878 F.2d 772 (3d Cir.1989).

To be dismissed as frivolous, the complaint must lack an arguable factual or legal basis. If the complaint arguably states a claim, then it should go forward so that the defendants can answer and plaintiff can receive notice of the possibility of Rule 12(b)(6) dismissal and the need to amend his complaint in order to properly state a legal claim.

Id. at 774. To allow dismissal under Rule 12(b)(6) prior to service would be to equate this rule with 28 U.S.C. § 1915(d), an interpretation the Supreme Court rejected in Neitzke.

Other concerns arise if dismissal under Rule 12(b)(6) occurs before service of process. In bypassing the procedural requirement of service and acting without the opposing party’s input, the district court bypasses our tradition of adversarial proceedings. The judge may be perceived as having abandoned the role of neutral arbiter. Ricketts v. Midwest National Bank, 874 F.2d 1177, 1184 (7th Cir.1989); Tingler v. Marshall, 716 F.2d 1109, 1111 (6th Cir.1983); Franklin v. State of Oregon, 662 F.2d 1337, 1342 (9th Cir.1981). While a judge could always give notice that the complaint might not pass muster under Rule 12(b)(6) and invite a responsive memorandum, when this is done before service of process the court may appear to be conducting a private litigation with the plaintiff while the defendant sits on the sidelines. As a matter of law and policy, we think that inappropriate, especially when the plaintiff is proceeding pro se.

Additional problems present themselves when dismissal on the merits occurs before service. Rather than promoting efficient case management, premature dismissal often results in greater inefficiency. While the district court may aim to clear its docket of what appears to be a meritless case and relieve the defendants of the time and expense needed to respond, if an appeal is taken the case shuttles between the district and appellate courts. Lewis v. State of New York, 547 F.2d 4, 6 (2d Cir.1976). Moreover, the appellate court, too, will likely be without the aid of opposing counsel to clarify the issues. Tingler, 716 F.2d at 1111 n. 3; Franklin, 662 F.2d at 1341. As other circuits have found, such results demonstrate the wisdom of requiring service of process before evaluating the sufficiency of the complaint. See Ricketts, 874 F.2d at 1184 (and cases cited).

For the foregoing reasons, the district court’s dismissal of the complaint under Rule 12(b)(6) prior to service of process was improper. Accordingly, the court’s order of dismissal will be vacated and this case remanded for service of process and further proceedings.⁸

1 . When a complaint is accompanied by a motion to proceed in forma pauperis, rather than by payment of a filing fee, the complaint is not docketed, and it is therefore not filed, until the motion has been granted.

2 . It is clear that the recommendation of the magistrate was for a dismissal pursuant to Rule 12(b)(6), though he never cites this rule. On the third page of the report and recommendation, the magistrate specifically discusses what is needed to survive a motion to dismiss. However, there is no such motion on the district court docket, nor could one have been filed, since the defendants were never served in this case.

3 . After objections are filed to a report and recommendation, the district court is obliged to conduct a de novo review. 28 U.S.C. § 636(b)(1). Nothing in the statute suggests that the magistrate may review the objections to his own report or comment on them. However, since the district court ultimately gave these matters a de novo review, there was no harm. In any event, while the magistrate may have followed improper procedures in this regard, the plaintiff does not raise this as an issue on appeal.

4 . Normally, when a litigant is granted leave to proceed in forma pauperis by the district court, this status carries over in the Court of Appeals. Fed.R.App.P. 24(a). However, if the district court dismisses the case as frivolous under 28 U.S.C. § 1915(d), the litigant must reapply to this Court to proceed in forma pauperis on appeal, since a finding of frivolousness is viewed as a certification that the appeal is not taken in good faith. 28 U.S.C. § 1915(a); Fed.R.App.P. 24(a). Dismissal of a complaint by the district court under Rule 12(b)(6) or any other rule does not negate the in forma pauperis status. Because the district court dismissed the complaint using the language of Rule 12(b)(6), and not as frivolous under 28 U.S.C. § 1915(d), there was no need to again grant Oatess leave to proceed in forma pauperis. However, we granted in forma pauperis status on appeal out of an excess of caution.

5 . We do not address here the scope of a district court’s sua sponte dismissal power under Rule 12(b)(6) after service of process. This issue has been recognized but left open by the Supreme Court. Neitzke, 109 S.Ct. at 1834 n. 8. We have observed that a district court might, sua sponte, raise the issue of the deficiency of a complaint under Rule 12(b)(6), so long as the plaintiff is accorded an opportunity to respond. Roman, 904 F.2d at 196; Dougherty v. Harper’s Magazine Co., 537 F.2d 758, 761 (3d Cir.1976).

6 . “Upon the filing of the complaint the clerk shall forthwith issue a summons to the plaintiff or the plaintiffs attorney, who shall be responsible for prompt service of the summons and a copy of the complaint. Upon request of the plaintiff separate or additional summons shall issue against any defendants.” Fed.R.Civ.P. 4(a).

7 . "The officers of the court shall issue and serve all process, and perform all duties in such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as are provided for by law in other cases.” 28 U.S.C. § 1915(c).

8 . Keeping in mind that all well-pleaded allegations are to be taken as true and dismissal is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief, we note for the benefit of the district court on remand that a Rule 12(b)(6) dismissal might not have been appropriate even if the district court had followed proper procedure. First, the allegation of a biased proceeding in the state court is sufficient to allege a constitutional violation. See Johnson v. Mississippi, 403 U.S. 212, 216, 91 S.Ct. 1778, 1780, 29 L.Ed.2d 423 (1971) (per curiam). Second, the defendant private attorneys appear to have acted under color of state law through their alleged conspiracy with the state actors. Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984); Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186-187, 66 L.Ed.2d 185 (1980). Third, the complaint appears to be stated with sufficient specificity for a conspiracy claim in that it alleges the specific conduct violating plaintiffs rights, the time and place of that conduct, and the identity of the responsible officials. Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1338, 103 L.Ed. 2d 808 (1989).

While the district court relied on several affirmative defenses in dismissing this action, we also note that it is doubtful whether absolute immunity should have been applied to defendants Judge Pfadt and the prosecutor because the allegations against them do not appear to concern their exercise of judicial or prosecutorial powers, but rather their use of influence in the state court proceeding. Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 1107-08, 55 L.Ed.2d 331 (1978); Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). Finally, to the extent that the district court also relied on qualified immunity for the benefit of the defendant court administrators, we call to the court’s attention that such a defense is for the defendant to plead and prove, not for the plaintiff to disprove. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980).