Johnson v. STATE OF NEB., DEPT. OF CORR. SERV., 4:CV92-3263.
| Decision Date | 19 October 1992 |
| Docket Number | No. 4:CV92-3263.,4:CV92-3263. |
| Citation | 806 F. Supp. 1412 |
| Parties | Roger Howard JOHNSON, Plaintiff, v. STATE OF NEBRASKA, DEPARTMENT OF CORRECTIONAL SERVICES, et al., Defendants. |
| Court | U.S. District Court — District of Nebraska |
Roger H. Johnson, pro se.
MEMORANDUM ON APPEAL
The plaintiff has appealed a recommendation of the United States Magistrate Judge. The plaintiff's position is that the library at the Hastings Correction Center is inadequate and there is no one at the center trained in the law to assist the plaintiff in the library. I must deny the appeal and shall accept the recommendation of the magistrate judge.
As explained by the magistrate judge's memorandum of August 23, 1992, the standard is, as stated by the United States Supreme Court in Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977):
"The fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law."
Here, there simply is no allegation of any facts that would tend to show that the library at the center is not adequate. If the law library is adequate, there is no constitutional right to have someone trained in the law to assist the plaintiff or other inmates. One or the other — an adequate law library or assistance of persons trained in the law — is all that is required.
Accordingly, I shall accept the recommendation of the magistrate judge for dismissal.
Plaintiff, presently confined in the Hastings Correctional Center (HCC), has filed an amended complaint pursuant to a previous order of this court. Because plaintiff is proceeding without the assistance of counsel, his complaint is before this court for initial review pursuant to Local Rule 52.1 Liberally construing the allegations of the complaint, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972), I conclude plaintiff's claim fails to allege facts sufficient to state a claim as against any defendant. I shall recommend dismissal.
Plaintiff has filed this action to challenge the adequacy of the law library at HCC and the assistance provided inmates by librarians. He seeks compensatory damages in the amount of $38 million dollars.
The initial review of plaintiff's original complaint granted plaintiff leave to allege facts, if they existed, that: 1) HCC's library contents were inadequate, and 2) plaintiff suffered "actual prejudice" as a result of a lack of trained assistants at the library. (Filing 6 at 3-4). Plaintiff has failed to allege facts to support either claim.
With regard to the inadequacy of the library's contents, plaintiff's original complaint merely stated that some volumes of the Nebraska Reports were not in the library. The amended complaint adds no allegations on this subject. In fact, plaintiff admits knowledge that cases reported in the Nebraska Reports are available in the library in other reporters. (Filing 7 at 4).
With regard to showing actual prejudice, plaintiff's amended complaint fails to allege any facts to show that he would have been successful in any other case had the library been staffed by trained assistants. Thus, plaintiff's complaint fails to state any claim upon which relief may be granted. F.R.Civ.P. 12(b)(6). I shall recommend this complaint be dismissed.
A bit needs to be said regarding the procedure of recommending dismissal of this claim, sua sponte, pursuant to Rule 12(b)(6). Although the United States Supreme Court has not yet addressed the issue of sua sponte dismissals under Rule 12(b)(6), see Neitzke v. Williams, 490 U.S. 319, 329 n. 8, 109 S.Ct. 1827, 1834 n. 8, 104 L.Ed.2d 338 (1989), the Eighth Circuit has repeatedly held such dismissals are permitted. See, e.g., Wabasha v. Smith, 956 F.2d 745 (8th Cir.1992) (per curiam); Smith v. Boyd, 945 F.2d 1041 (8th Cir.1991); Mildfelt v. Circuit Court of Jackson County, Mo., 827 F.2d 343, 345 (8th Cir.1987) (per curiam); Tatum v. Iowa, 822 F.2d 808, 810 (8th Cir.1987) (per curiam); K/O Ranch, Inc. v. Norwest Bank of Black Hills, 748 F.2d 1246, 1248, n. 3 (8th Cir.1984).
However, there appears to be some disagreement among various panels of the Eighth Circuit as to the appropriateness of such dismissals prior to service of process. Compare Wabasha v. Smith, 956 F.2d 745 (), and Martin-Trigona v. Stewart, 691 F.2d 856, 858 (8th Cir.1982) (per curiam) (); to Smith v. Boyd, supra; Freeman v. Abdullah, 925 F.2d 266 (8th Cir.1991). Insofar as this court's practices are concerned, I conclude that when sua sponte dismissals are appropriate, they can, and should, be made prior to service of process.
In 1982, the Eighth Circuit first noted that "under Rule 12(b)(6), a district court may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a claim...." Martin-Trigona v. Stewart, 691 F.2d at 858 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1357 at 593 (1969)).2 Since that time, Martin-Trigona has repeatedly been cited for the proposition that a district court has the power sua sponte to dismiss a complaint for failure to state a claim under Rule 12(b)(6). See Mildfelt v. Circuit Court of Jackson County, Mo., 827 F.2d at 345; Tatum v. Iowa, 822 F.2d at 810; K/O Ranch, Inc. v. Norwest Bank of Black Hills, 748 F.2d at 1248, n. 3. These decisions neither held nor implied that service of process should precede sua sponte dismissals under Rule 12(b)(6).
In 1991, a panel of the Eighth Circuit3 apparently sought to limit the circumstances under which a district court could dismiss a complaint sua sponte pursuant to Rule 12(b)(6), by announcing that "a complaint can be dismissed prior to service of process only if it is frivolous under 28 U.S.C. § 1915(d)." Freeman v. Abdullah, 925 F.2d at 267. The court cited no authority for such a rule, and the opinion neither cited nor discussed the previous holdings dealing with sua sponte dismissals under 12(b)(6). Shortly thereafter, the same panel cited to Freeman when holding that "a district court sua sponte may dismiss a complaint under Rule 12(b)(6) as long as dismissal does not precede service of process." Smith v. Boyd, 945 F.2d at 1043. See also Addison v. Pash, 961 F.2d 731 (8th Cir.1992) (same). The Smith v. Boyd decision marked the first time that a panel of the Eighth Circuit explicitly conditioned sua sponte dismissal under 12(b)(6) upon prior service of process — a limitation not present in prior Eighth Circuit decisions addressing the issue, and not contained in Rule 12(b)(6) itself.
The practical utility of the rule set forth in Smith v. Boyd is unclear.4 The rule does not require that district courts wait for a responsive filing before dismissing an action sua sponte under 12(b)(6); it requires simply that process be served prior to such a dismissal. Furthermore, it does not appear the rule stems from concern for assuring that plaintiffs receive notice and an opportunity to respond prior to sua sponte dismissals under 12(b)(6). See Addison v. Pash, 961 F.2d 731 (8th Cir.1992) (); Smith v. Boyd, 945 F.2d at 1043 ()5
Recently, a panel of the Eighth Circuit6 affirmed, with little discussion, the sua sponte dismissal of a complaint prior to service of process. See Wabasha v. Smith, 956 F.2d 745 (8th Cir.1992) (per curium). Although the opinion itself does not indicate whether the complaint was dismissed by the district court as frivolous under § 1915(d) or for failure to state a claim under Rule 12(b)(6), the dissent provides illumination by explaining that the complaint was dismissed prior to service of process under "the standard for failure to state a claim." Wabasha at 746 (Heaney, J., dissenting). See also Bilal v. Kaplan, 956 F.2d 856 (8th Cir.1992) ().
Thus, it appears there are divergent views over whether a district court may dismiss a complaint sua sponte under 12(b)(6), prior to service of process. Although this apparent disparity presents a dilemma for magistrate judges who recommend dismissals under Rule 12(b)(6), Martin-Trigona and its progeny remain good law. See Woodard v. Sargent, 806 F.2d 153, 156 (8th Cir.1986) (). Accordingly, when presented with complaints where sua sponte dismissal is appropriate, I choose to follow the more pragmatic approach first set forth in Martin-Trigona and recently reaffirmed in Wabasha, and recommend dismissal of the complaint prior to service of process. Though my decision to recommend dismissal prior to service of process rests soundly upon Eighth Circuit precedent, I believe it is further supported by considerations of judicial economy and equal treatment for both indigent and paying litigants.
This court, like so many others in the nation, has experienced an increased number of pro se filings since the 1970's. In order to effectively and efficiently address the increased workload accompanying those filings, this court, again like many others, has adopted procedures aimed at providing access to the courts for unrepresented litigants, screening meritless claims, and...
To continue reading
Request your trial