Timothy John Bettin v. Perry Johnson, Director of the Michigan Department of Corrections , 755 F.2d 931 ( 1985 )

755 F.2d 931

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
TIMOTHY JOHN BETTIN, PLAINTIFF-APPELLANT,
v.
PERRY JOHNSON, DIRECTOR OF THE MICHIGAN DEPARTMENT OF
CORRECTIONS, DEFENDANT-APPELLEE.

No. 83-1764

United States Court of Appeals, Sixth Circuit.

1/11/85

ORDER

BEFORE: MARTIN and KRUPANSKY, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

1

Appellant appeals from the district court judgment which sua sponte dismissed his civil rights complaint. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and appellant's brief, this panel agrees unanimously that oral argument is not necessary. Rule 34(a), Federal Rules of Appellate Procedure.

2

In Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983) this Court held that before a district court can sua sponte dismiss a civil rights complaint, the court 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. Id. at 1112.

3

In the present case, the district court did not follow any of the steps mandated by Tingler before it dismissed the complaint. The case must, therefore, be remanded for further proceedings.

4

Accordingly, it is ORDERED that the judgment of the district court is vacated and the case is remanded for further proceedings in light of Tingler, supra. Rule 9(d)(4), Rules of the Sixth Circuit.