Unpublished Dispositionjohnnie Franklin Flournoy, Jr.; Lawrence Hill, Plaintiffs-appellants, v. Richard P. Seiter; Ronald C. Marshall; and Jeff Craft,defendants-appellees, 791 F.2d 932 (6th Cir. 1986)

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 briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

In this action brought under 42 U.S.C. § 1983, plaintiffs (inmates of the Southern Ohio Correctional Faciltiy) seek monetary and injunctive relief from defendants (employees of the facility) in connection with alleged deprivations of plaintiffs' constitutional rights. The district court caused the action to be dismissed sua sponte, finding it to be frivolous as that term is used in 28 U.S.C. § 1915(d). Plaintiffs appealed. On appeal, the parties have briefed the issues, plaintiffs proceeding without benefit of counsel.

Upon consideration, we vacate the judgment and remand for further proceedings. Sua sponte dismissals of the type involved in this cause may violate the dictates of this Court's holding in Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983). Such immediate dismissals are improper unless it is found that the Sec. 1915(d) 'frivolous' determination is correct. Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1984). An action is frivolous under Sec. 1915(d) if it appears beyond doubt that the plaintiffs can prove no set of facts which would entitle them to relief. Malone v. Colyer, 710 F.2d 258 (6th Cir. 1983). The instant pro se complaint, in being judged by this standard, must be given a liberal construction. Haines v. Kerner, 404 U.S. 519 (1972). Thus construing this complaint, plaintiffs may have alleged several legally cognizable claims, particularly a claim related to investigation of an inmate's death. Tingler applies and dismissal was inappropriate at the outset without a response by defendants concerned.

We must therefore vacate the judgment under Rule 9(d) (4), Rules of the Sixth Circuit. The final order of the district court is therefore vacated and this case remanded for further proceedings.