Unpublished Dispositionronald Newson, Plaintiff-appellant, v. Les Harrison; Charles Mckinney, Defendants-appellees, 787 F.2d 592 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 787 F.2d 592 (6th Cir. 1986) 3/10/86


M.D. Tenn.


BEFORE: MERRITT and WELLFORD, Circuit Judges, and PECK, Senior Circuit Judge.

Plaintiff, a Tennessee state prisoner, appeals the sua sponte dismissal of his pro se civil rights action brought under 42 U.S.C. § 1983. 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.

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 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 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 dismissal.' Id. at 1112; see also, Morrison v. Tomano, 755 F.2d 515 (6th Cir. 1985). In this case, the district court did not follow these procedures or dismiss the case as frivolous under 28 U.S.C. § 1915(d). Cf. Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985).

Accordingly, It is ORDERED that the district court's judgment is vacated and the case is remanded for further proceedings consistent with Tingler v. Marshall, supra. Sixth Circuit Rule 9(d) (4).