Unpublished Dispositionelmer Winters, Plaintiff-appellant, v. George Voinovich; Reginald Turner; William Hanton; City Ofcleveland, Defendants-appellees, 826 F.2d 1066 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 826 F.2d 1066 (6th Cir. 1987) Aug. 10, 1987


Before KENNEDY, MILBURN and NORRIS, Circuit Judges.

This matter is before the court upon consideration of plaintiff's appeal from the district court's sua sponte order dismissing his civil rights action filed under 42 U.S.C. § 1983. The matter has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the certified record and the parties' briefs, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Plaintiff alleged that defendants negligently issued a defective warrant which caused him to be falsely arrested and imprisoned. The district court sua sponte dismissed the action for failure to state a claim upon which relief can be granted.

Upon consideration, this court concludes that the sua sponte dismissal of this action was improper because the district court failed to comply with the mandate of this court's holding in Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983) or Harris v. Johnson, 784 F.2d 222 (6th Cir. 1986). The trial court is therefore instructed either to amend its judgment to state that dismissal is ordered pursuant to Section 1915(d) or, if the court determines that the complaint is not frivolous, to open the case and apply the Tingler procedures.

It is therefore ORDERED that the district court's order of November 24, 1986 be and hereby is vacated and the case is remanded for further consideration. Rule 9(b) (6), Rules of the Sixth Circuit.