Sherrills v. Celeste

780 F.2d 1023

Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. (The decision of the Court is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter.) DARIES SHERRILLS, Plaintiff-Appellant v. RICHARD F. CELESTE, Governor; ANTHONY CELEBREZZE, Attorney General; FRANK H. GRAY, Superintendent and MR. SEITHER, Department of Corrections, Defendants-Appellees.

84-3921

United States Court of Appeals, Sixth Circuit.

11/11/85

VACATED AND REMANDED

N.D.Ohio

ORDER

Before: LIVELY, Chief Judge; JONES and WELLFORD, Circuit Judges.

1

Plaintiff, a state prisoner, appeals the sua sponte dismissal of his civil rights complaint brought under 42 U.S.C. Sec. 1983 . Plaintiff also moves for pauper status on appeal. The case has been referred to a panel of the Court pursuant to Sixth Circuit Rule 9(a). Upon examination of plaintiff's brief and the record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

2

In Tingler v. Marshall, 716 F.2d 1109, 1112 (6th Cir. 1983), this Court held that before a district court may dismiss a civil rights case sua sponte, it ordinarily 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 complaint is dismissed, state its reasons for the dismissal.' Id. at 1112 . In this case, the district court did not follow these procedures.

3

Accordingly, it is ORDERED that the motion to proceed in forma pauperis is granted. The district court's judgment is vacated and the case is amended for further proceedings consistent with Tingler v. Marshall, supra. Rule 9(d)(4), Rules of the Sixth Circuit.