Barry Armistead, Billy Burchette v. Sullivan County Jail Mike Gardner, Sheriff

856 F.2d 192

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Barry ARMISTEAD, Et Al., Plaintiffs,
Billy Burchette, Plaintiff-Appellant,
v.
SULLIVAN COUNTY JAIL; Mike Gardner, Sheriff, Defendants-Appellees.

No. 88-5093.

United States Court of Appeals, Sixth Circuit.

Sept. 1, 1988.

Before LIVELY, RYAN and ALAN E. NORRIS, Circuit Judges.

ORDER

1

This case 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 unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

This pro se Tennessee state prisoner appeals from the district court's order sua sponte dismissing a 42 U.S.C. Sec. 1983 suit filed by 27 inmates. As the remaining plaintiffs were not named in the notice of appeal, this court lacks jurisdiction over them, and the order of dismissal is final as to them. Torres v. Oakland Scavenger Co., 56 U.S.L.W. 4740 (U.S. June 24, 1988) (No. 86-1845). Plaintiffs sought injunctive relief in their suit challenging the conditions of their confinement. The magistrate to whom the case was assigned recommended sua sponte dismissal for failure to state a claim. No objections were filed, and the district court adopted this recommendation.

3

Appellant argues that the magistrate's report and recommendation was served on a prisoner who had been transferred, and that the remaining interested plaintiffs were not given notice of the report. We conclude that the lack of objections should be excused under the circumstances of this case. Kent v. Johnson, 821 F.2d 1220, 1222-23 (6th Cir.1987). Upon consideration, we also find that the requirements of Tingler v. Marshall, 716 F.2d 1109 (6th Cir.1983), were not met in this case as the plaintiffs were not given notice of the intent to dismiss and a chance to amend their complaint and the order of dismissal did not expressly cite to 28 U.S.C. Sec. 1915(d). See Harris v. Johnson, 784 F.2d 222 (6th Cir.1986).

4

For these reasons, therefore, the order of the district court is hereby vacated and this case is remanded for further consideration. Rule 9(b)(6), Rules of the Sixth Circuit.