Brooks v. Seiter, No. 84-3007

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore MERRITT and JONES, Circuit Judges, and BROWN; BAILEY BROWN
Citation779 F.2d 1177
PartiesStewart B. BROOKS and Mandel Calvin, Plaintiffs-Appellants, v. Richard P. SEITER, Frederick Silber, Judith Allen and G. Padan, Defendants-Appellees.
Decision Date30 December 1985
Docket NumberNo. 84-3007

Page 1177

779 F.2d 1177
Stewart B. BROOKS and Mandel Calvin, Plaintiffs-Appellants,
v.
Richard P. SEITER, Frederick Silber, Judith Allen and G.
Padan, Defendants-Appellees.
No. 84-3007.
United States Court of Appeals,
Sixth Circuit.
Submitted on Briefs Oct. 3, 1985.
Decided Dec. 30, 1985.

Stewart B. Brooks, pro se.

Mandel Calvin, pro se.

Saundra J. Robinson, Akron, Ohio (Court Appointed), for plaintiffs-appellants.

Anthony J. Celebrezze, Jr., Atty. Gen. for Ohio, Columbus, Ohio, Michael A. Moses, for defendants-appellees.

Before MERRITT and JONES, Circuit Judges, and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

Prison inmates Stewart B. Brooks and Mandel Calvin (prisoners) brought this action pro se against prison officials of the State of Ohio (defendants) under 42 U.S.C.

Page 1178

Sec. 1983. The complaint alleged that the defendants withheld from the prisoners, pursuant to Ohio Administrative Regulation Sec. 5120-9-19, certain pamphlets and magazines to which they held mail-order subscriptions. The challenged regulations permit prison officials to withhold written materials from prisoners only if the materials are "obscene" or "inflammatory." The prisoners contend, inter alia, that these actions, undertaken under color of state law, violate their civil rights secured by the first and fourteenth amendments, by operating as an abridgement of free speech or press. The district court granted prisoners' motions to proceed in forma pauperis, but dismissed the complaint sua sponte, pursuant to 28 U.S.C. Sec. 1915(d), as frivolous. Accordingly, the only issue presented is whether the prisoners' claims, as stated in their complaint, are frivolous. We conclude that the district court's conclusion that the claims are frivolous was error, and therefore reverse.

I.

Both prisoners are incarcerated in the Southern Ohio State Correctional Facility at Lucasville, Ohio (the prison). They brought suit against the Ohio prison officials 1 responsible for prohibiting them from receiving mail order publications 2 received under the State's "publishers only" rule. 3

As heretofore stated, the basis for refusing prisoners access to the publications was Ohio Administrative Code Sec. 5120-9-19, a regulation that prohibits inmates from receiving printed materials that are "inflammatory" or "obscene". Inflammatory materials are those which, when present in the institution, "would constitute a clear and present danger to the security or safety of the institution." Ohio Ad.Code Sec. 5120-9-19(D)(2). The regulation also provides that "[n]o publication shall be considered inflammatory solely on the basis of its appeal to a particular ethnic, racial or religious audience." 4 Materials may be found obscene only under the standards enunciated by the United States Supreme Court. Ohio Ad.Code Sec. 5120-9-19(D)(1). The pertinent regulation adopts the test of Miller v. California, 413 U.S. 15, 24-25, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973), and permits the prison officials to withhold as "obscene" only printed material that, taken as a whole: (1) lacks serious literary, artistic, political or scientific value; (2) the average person, applying contemporary community standards, would find appeals to a prurient interest; and (3) depicts or

Page 1179

describes in a patently offensive way certain enumerated kinds of conduct. 5

As to procedure, the regulations require screening of all incoming publications by the prison officials assigned to the mail room. Ohio Ad.Code Sec. 5120-9-19(F). Inmates must be provided with notice of an adverse determination, of their right to review the material personally, and of their right to appeal the decision to the PSC in Columbus. Ohio Ad.Code Sec. 5120-9-19(F)(1). The prisoners do not contend that the procedure established for review of incoming publications does not satisfy procedural due process requirements, or that each step in the procedure was not followed.

The prisoners claim that the regulations were misconstrued, even intentionally misconstrued, in making the determination that the prisoners' printed materials could be prohibited to them. They further contend that, as applied to their materials, the regulations were overbroad in that they lack a rational relationship to a legitimate state interest in prison security. The complaint is not clear as to whether the prisoners contend that, by intentional misapplication of the regulation, they were denied due process, and we do not reach any such claim. They clearly contend, however, that in applying the regulation, their first amendment rights, as made applicable to the states by the fourteenth amendment, were violated.

The district court, however, characterized the prisoners' complaint as merely "a disagreement over the interpretation of the Ohio Administrative Code." It then stated: "Prison officials should be accorded wide range in deference [sic] in matters involving prison discipline and security. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). This is such a matter. Accordingly, this petition is hereby dismissed. 28 U.S.C. Sec. 1915(d)." 6 Appendix 32-33. Thus the district court erroneously treated the complaint as only alleging a misinterpretation of the regulation, or it determined, without further investigation of the materials prohibited, that their proscription was permitted by the deference allowed to prison authorities, and therefore further judicial review was not required.

II.

Under the law of this circuit, a district court may dismiss a pro se complaint sua sponte, prior to service of process and without providing plaintiffs a reasonable opportunity to amend, only if the complaint is "frivolous" within the meaning of 28 U.S.C. Sec. 1915(d). Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir.1985); Tingler v. Marshall, 716 F.2d 1109 (6th Cir.1983).

While recognizing that "[f]rivolity, like obscenity, is often difficult to define," WSM, Inc. v. Tennessee Sales Co., 709 F.2d 1084, 1088 (6th Cir.1983), 7 this court has determined that a complaint may be dismissed as frivolous only if "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir.1985) (quoting Malone v. Colyer, 710 F.2d 258, 260-61 (6th Cir.1983)). Because...

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279 practice notes
  • Easterling v. Crawford, Case No. 3:13-cv-430
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • February 3, 2014
    ...v. Walters, 753 F.2d 498, 500 (6th Cir. 1985), disagreed with by Walker v. Mintzes, 771 F.2d 920 (6th Cir. 1985); Brooks v. Seiter, 779 F.2d 1177 (6th Cir. 1985). Section 1915(e)(2) does not apply to the complaint of a non-prisoner litigant who does not seek in forma pauperis status. Benson......
  • Alahverdian v. Ohio, Case No. 3:13-cv-113
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • May 10, 2013
    ...Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985), disagreed with by Walker v. Mintzes, 771 F.2d 920 (6th Cir. 1985); Brooks v. Seiter, 779 F.2d 1177 (6th Cir. 1985). As Plaintiff was previously advised, at the time the Court analyzes the Complaint under § 1915(e)(2), it will also analyze w......
  • Parrish v. Johnson, No. 84-1642
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 5, 1986
    ...a prisoner's incoming mail. See Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974); Brooks v. Seiter, 779 F.2d 1177, 1180-81 (6th In this case, we are not confronted with a regularly applied regulation requiring the opening of all prisoners' incoming mail, ......
  • Clonlara, Inc. v. Runkel, Civ. A. No. 86-75439.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • July 18, 1989
    ...857, 858 (6th Cir.1976). Dismissals of complaints under the civil rights statutes are scrutinized with special care, Brooks v. Seiter, 779 F.2d 1177, 1180 (6th Cir.1985). A rule 12(b)(6) motion should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of fact......
  • Request a trial to view additional results
279 cases
  • Easterling v. Crawford, Case No. 3:13-cv-430
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • February 3, 2014
    ...v. Walters, 753 F.2d 498, 500 (6th Cir. 1985), disagreed with by Walker v. Mintzes, 771 F.2d 920 (6th Cir. 1985); Brooks v. Seiter, 779 F.2d 1177 (6th Cir. 1985). Section 1915(e)(2) does not apply to the complaint of a non-prisoner litigant who does not seek in forma pauperis status. Benson......
  • Alahverdian v. Ohio, Case No. 3:13-cv-113
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • May 10, 2013
    ...Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985), disagreed with by Walker v. Mintzes, 771 F.2d 920 (6th Cir. 1985); Brooks v. Seiter, 779 F.2d 1177 (6th Cir. 1985). As Plaintiff was previously advised, at the time the Court analyzes the Complaint under § 1915(e)(2), it will also analyze w......
  • Parrish v. Johnson, No. 84-1642
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 5, 1986
    ...a prisoner's incoming mail. See Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974); Brooks v. Seiter, 779 F.2d 1177, 1180-81 (6th In this case, we are not confronted with a regularly applied regulation requiring the opening of all prisoners' incoming mail, ......
  • Clonlara, Inc. v. Runkel, Civ. A. No. 86-75439.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • July 18, 1989
    ...857, 858 (6th Cir.1976). Dismissals of complaints under the civil rights statutes are scrutinized with special care, Brooks v. Seiter, 779 F.2d 1177, 1180 (6th Cir.1985). A rule 12(b)(6) motion should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of fact......
  • Request a trial to view additional results

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