Hitt v. City of Pasadena, 77-2043

Decision Date19 October 1977
Docket NumberNo. 77-2043,77-2043
Citation561 F.2d 606
PartiesRicky D. HITT, Kathleen Hitt and Charlott Cross, Plaintiffs-Appellants, v. The CITY OF PASADENA and John Ray Harrison, Individually and as Mayor of Pasadena, Defendants-Appellees. Summary Calendar. *
CourtU.S. Court of Appeals — Fifth Circuit

W. Michael Leebron, II, Laron D. Robinson, Houston, Tex., for plaintiffs-appellants.

Charles A. Easterling, City Atty., Douglas Ogle, Asst. City Atty., Pasadena, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before AINSWORTH, MORGAN and GEE, Circuit Judges.


The plaintiffs in this case are the surviving children of Charles A. Hitt. They brought a civil rights action under 42 U.S.C. §§ 1981-1983 against the mayor and City of Pasadena, Texas, and against unknown police agents of that city. They allege that their father, while in custody of the Pasadena police, suffered a beating that later proved fatal. Shortly after their complaint was filed the defendants filed an answer and a motion to dismiss under Federal Rule of Civil Procedure 12(b). The plaintiffs' attorneys acknowledge certain defects in their pleadings but say that they received verbal assurances from the court clerk that he would briefly delay submitting the defendants' motion to dismiss, in order to allow them time to amend the complaint. Whatever the facts of this matter may be, the plaintiffs' attorneys failed to file a motion for leave to amend until after the court had dismissed the complaint with prejudice. At the same time that the plaintiffs filed for leave to amend they also filed a motion for rehearing and for a new trial, both of which were denied by the trial court. The plaintiffs appeal from the original dismissal of their case with prejudice, as well as from the denial of the rehearing. We reverse the district court's dismissal with prejudice and remand for dismissal without prejudice.

The district court's order dismissing the case was apparently based both on want of federal jurisdiction as well as on failure to state a claim on which relief could be granted. Ordinarily, where both these grounds for dismissal apply, the court should dismiss only on the jurisdictional ground under Fed.R.Civ.P. 12(b)(1), without reaching the question of failure to state a claim under Fed.R.Civ.P. 12(b)(6). C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1350 (1971). Dismissal with prejudice for failure to state a claim is a decision on the merits and essentially ends the plaintiff's lawsuit, whereas a dismissal on jurisdictional grounds alone is not on the merits and permits the plaintiff to pursue his claim in the same or in another forum.

It is not clear from the district court's opinion whether each claim against each defendant was dismissed on both grounds, i. e., want of jurisdiction as well as failure to state a claim. 1 But even supposing that it were proper to reach the 12(b)(6) issue as to all of the defendants, the district court's dismissal on the merits with prejudice was unduly harsh under the circumstances of this case.

As a general guide to the interpretation of the Federal Rules of Civil Procedure, the Supreme Court has said: "The federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley v. Gibson,355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). It is the well-established policy of the federal rules that the plaintiff is to be given every opportunity to state a claim. As this court has often stated, a complaint is not subject to dismissal unless "it appears to be a certainty that the plaintiff cannot possibly be entitled to relief under any set of facts which could be proved in support of its allegations. Even then, a court ordinarily should not dismiss the complaint except after affording every opportunity (for) the plaintiff to state a claim upon which relief (can) be granted." Byrd v. Bates, 220 F.2d 480, 482 (5th Cir. 1955). See also Black v. First National Bank of Mobile, 255 F.2d 373, 375 (5th Cir. 1958); Robertson v. Johnston,376 F.2d 43, 45 (5th Cir. 1967). With respect to the question of a dismissal with prejudice, this court has said: "In the decided cases it is recognized that the dismissal of a case with prejudice is a drastic remedy to be used only in those cases where a lesser sanction would not better serve the interests of...

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1 books & journal articles
    • United States
    • Notre Dame Law Review Vol. 96 No. 1, November 2020
    • November 1, 2020
    ...grounds does not extinguish the claim; it can be brought again and succeed in a court of proper jurisdiction. Hitt v. City of Pasadena, 561 F.2d 606, 608-09 (5th Cir. 1977); 18A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE [section] 4436, at 1......

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