Unpublished Dispositionjack C. Settle, Plaintiff-appellant, v. Larry Lack, Warden, Steve Norris, Commissioner, and Howardcook, Director, Defendants-appellees, 812 F.2d 1408 (6th Cir. 1987)

ORDER

The pro se appellant, Jack C. Settle, is appealing the November 20, 1985 order of the district court dismissing his civil rights complaint.

The case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the briefs, documents filed on appeal, and the record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The appellant is a state prisoner incarcerated in Turney Center, Tennessee. He alleges that the defendants have subjected him to a series of punitive transfers without affording him a due process hearing. The appellant has also requested that this case be declared a class action suit.

The magistrate recommended that the case be dismissed as frivolous pursuant to 28 U.S.C. § 1915(d). The appellant filed a timely objection noting that he had paid his filing fee. The district court thereafter wrote a handwritten note on the magistrate's report approving it and dismissing the case.

When ordering a sua sponte dismissal of a plaintiff's complaint on the merits, this Court requires that the district court:

(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.

Tingler v. Marshall, 716 F.2d 1109, 1112 (6th Cir. 1983).

If the district court sua sponte dismisses the case pursuant to the in forma pauperis statute, 28 U.S.C. § 1915(d), the district court is required to "explicitly state that the statute is being invoked and that the complaint is being dismissed as frivolous." Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986).

The appellant paid his filing fee at the district court level. Therefore, the district court was required to proceed under the Tingler standard and not 28 U.S.C. § 1915(d). The case must be remanded for further proceedings consistent with Tingler. The court should also address the motion for class action suit.

Accordingly, it is ORDERED that the district court judgment be vacated and the case is remanded for further proceedings consistent with this order. Rule 9(d) (4), Rules of the Sixth Circuit.