963 F.2d 453 (D.C. Cir. 1992), 90-7071, Neal v. Kelly

Docket Nº:90-7071.
Citation:963 F.2d 453
Party Name:James H. NEAL, Appellant, v. Sharon Pratt KELLY, Mayor, et al., Appellees.
Case Date:May 19, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 453

963 F.2d 453 (D.C. Cir. 1992)

James H. NEAL, Appellant,


Sharon Pratt KELLY, Mayor, et al., Appellees.

No. 90-7071.

United States Court of Appeals, District of Columbia Circuit.

May 19, 1992

Argued April 10, 1992.

Page 454

Appeal from the United States District Court for the District of Columbia No. 88-03169.

Robert Raben (appointed by the Court as amicus curiae), with whom Geoffrey Aronow, Washington, D.C., was on the brief, for appellant.

James H. Neal was on the brief, pro se.

James C. McKay, Jr., Attorney, Office of Corp. Counsel, Washington, D.C., for appellees. John Payton, Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Rosalyn Calbert Groce, Asst. Corp. Counsel, Washington, D.C., were on the brief for appellees. Lutz Alexander Prager, Attorney, Office of Corp. Counsel, Washington, D.C., also entered an appearance for appellees.

Before: MIKVA, Chief Judge; and D.H. GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

James H. Neal, a prisoner at Lorton, appeals from a summary judgment dismissing his complaint for civil rights violations under 42 U.S.C. § 1983. Because we conclude that Neal did not receive adequate notice that the matter was before the district court for summary judgment, and because the district court did not treat Neal's verified complaint as an affidavit for summary judgment purposes, we reverse and remand.


    Neal filed his complaint on November 2, 1988 in the United States District Court for the District of Columbia, alleging that he had been beaten by a guard and subsequently summarily transferred to administrative segregation, in violation of his constitutional rights to due process, equal protection and protection against cruel and unusual punishment. 1 He filed the complaint on a form questionnaire headed:

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    ACT, 42 U.S.C. § 1983

    The filing included a five-page statement of alleged facts setting forth, inter alia, the details of the guard beating Neal and the summary transfer to administrative segregation.

    On November 7, through some inadvertence, the district court entered an "Order Directing Respondent to Show Cause," within fifteen days, "Why the Writ of Habeas Corpus Should Not Issue." Whether misled by the court's inadvertence or for some other reason, on December 8, 1988, the District of Columbia Corporation Counsel filed a response to the order continuing to treat the action not as a civil action under 42 U.S.C. § 1983 but as a Petition for Writ of Habeas Corpus. The Corporation Counsel asserted that the court was without jurisdiction to hear the "petition" and that the "petitioner's" claim was a frivolous one. He therefore requested "that the petition for Writ of Habeas Corpus be denied and that the Order to Show Cause issued thereon be dismissed." On January 30, 1989, Corporation Counsel refiled the response to the show cause order, this time accompanied by affidavits from prison officials, along with other exhibits, supporting the proposed conclusion that plaintiff's action was without factual merit.

    On January 31, 1989, the district court entered another order to show cause, this time directing Neal to show cause why his claim should not be dismissed for lack of merit. The order did not inform Neal under what rule the court was proceeding, did not provide him with instructions as to how he should respond, and did not tell him the consequences of failing to respond. Specifically, the order did not inform Neal that the court was proceeding to treat the District's filing as a motion for summary judgment pursuant to Fed.R.Civ.P. 56.

    After obtaining one extension of time before response, on March 6, 1989, Neal filed opposition to "Defendants...

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