Unpublished Dispositionrandall Joe Darnell, Plaintiff-appellant, v. Tennessee Valley Authority; B.o. Cingilli; Peninsulahospital, Defendants-appellees, 878 F.2d 381 (6th Cir. 1989)

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U.S. Court of Appeals for the Sixth Circuit - 878 F.2d 381 (6th Cir. 1989)

June 23, 1989


Before KENNEDY, RALPH B. GUY and ALAN E. NORRIS, Circuit Judges.


ORDER

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 record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Randall Joe Darnell appeals pro se from the dismissal of his civil rights suit. His complaint alleged that he had been employed by defendant Tennessee Valley Authority, and that conflicts involving his work caused him to admit himself to defendant hospital. He alleged that the hospital somehow violated his civil rights. The district court dismissed the complaint sua sponte, concluding that it was barred by the statute of limitations, and noting that no claim had been made regarding the defendant B.O. Cingilli.

Upon consideration, we conclude that the district court's judgment must be vacated. A district court may not dismiss a case without first giving the plaintiff an opportunity to amend his complaint, unless it concludes that the complaint is frivolous, and expressly cites to 28 U.S.C. § 1915(d). See Harris v. Johnson, 784 F.2d 222, 223 (6th Cir. 1986); Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983). Moreover, it is error for a court to raise the issue of the statute of limitations sua sponte, as that defense may be waived by the defendants. See Haskell v. Washington Township, 864 F.2d 1266, 1273 (6th Cir. 1988).

Accordingly, the district court's judgment is hereby vacated, and this case remanded for further consideration. Rule 9(b) (6), Rules of the Sixth Circuit.