Morrison v. Tomano
| Decision Date | 01 March 1985 |
| Docket Number | No. 83-3626,83-3626 |
| Citation | 755 F.2d 515 |
| Parties | James G. MORRISON, Jr., et al., Plaintiffs-Appellants, v. Lieutenant TOMANO, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Patrick J. Donlin, Warren, Ohio, for plaintiffs-appellants.
Thomas A. Dugan, Ulmer, Berne, Laronge, Glickman & Curtis, Cleveland, Ohio, for defendants-appellees.
Before KENNEDY and WELLFORD, Circuit Judges, and WEICK, Senior Circuit Judge.
Plaintiffs, through counsel, "as citizens of Trumbull County, Ohio," filed suit in federal district court alleging violation of various constitutional rights under Title 42 Secs. 1983 and 1985. The filing was accompanied by a deposit. Named as defendants were: Lieutenant Tomano, Jan Bertilacci, George Paveletich, Detective; Sgt. Tercecky; The City of Youngstown; James Traficant, Sheriff; Denis Baker, The City of Hubbard; Paula Morrison, C.W. Bathingham, Magistrate; Magistrate John or Jane Doe; Prosecutor John or Jane Doe; Police Officer John Doe # 1 and 2, The City of Hampton, Virginia; and the County of Hampton, Virginia.
The complaint according to the district judge "fail[ed] to delineate for the court whether any of the defendants engaged in any conduct which deprived any of the plaintiffs of any rights, privileges or immunities secured to them by either the Constitution or, the laws of the United States." The court, accordingly, a few days after the filing dismissed the complaint without prejudice for failure to state a cause of action before defendants had been served and before any responsive pleadings had been served. The court did not afford any opportunity to amend the complaint. By affidavit plaintiffs assert that the reason they filed the complaint at the time and with its deficiencies was to prevent the running of a statute of limitations. 1
The complaint asserts that defendants engaged in a scheme to deny plaintiffs' fourth, fifth and sixth amendment rights and, "with the exception of defendant Paula Morrison, each and all of the acts of defendants alleged herein were done by defendants, and each of them, not as individuals, but under color and pretense of the statutes, ordinances, regulations, customs and usages of the State of Ohio, the Cities of Hubbard and Youngstown, Ohio, and the Counties of Hampton, Virginia and Mahoning, State of Ohio, and under the authority of their offices as officials of the said governments." It asserts that plaintiffs suffered "mental distress," "were deprived of liberty," suffered "discomfort and embarrassment," and "lost income." Plaintiffs therefore demanded substantial compensatory and punitive damages and a jury trial.
In addressing the propriety of this sua sponte dismissal, we must first consider the implications of Tingler v. Marshall, 716 F.2d 1109 (6th Cir.1983), although the case was not cited by either party. In Tingler, we reversed a district judge's sua sponte dismissal--based on what he believed to be clear Supreme Court precedent--of a prisoner complaint. Tingler contains the following broad language which might be read to require reversal of the district judge's dismissal in the instant case:
Under our supervisory power, we hold that a district court faced with a complaint which it believes may be subject to dismissal must: (1) allow service of the complaint upon the defendant; (2) notify all parties of its intent to dismiss the complaint; (3) give the plaintiff a chance to either amend his complaint or respond to the reasons stated by the district court in its notice of intended sua sponte dismissal; (4) give the defendant a chance to respond or file an answer or motions; and (5) if the claim is dismissed, state its reasons for the dismissal.
This broad language, however, appears in the context of an expressly narrow holding. As stated by the Tingler court, "the narrow issue which we address involves sua sponte dismissals on the merits, prior to service of the complaint and without notice of the proposed dismissal to the plaintiff to allow him to respond." Id. at 1111 (emphasis added). The instant case differs from Tingler in that it involves a dismissal without prejudice for failure to state a claim, rather than a dismissal on the merits. See Shaw v. Merritt-Chapman & Scott Corp., 554 F.2d 786, 789 (6th Cir.), cert. denied, 434 U.S. 852, 98 S.Ct. 167, 54 L.Ed.2d 122 (1977). We must determine how this distinction affects the...
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...must provide the plaintiff an opportunity to amend the complaint or respond to the notice and reasons for dismissal. Morrison v. Tomano, 755 F.2d 515, 517 (6th Cir. 1985). 2. If the complaint is merely vague or ambiguous, a motion under Fed.R.Civ.P. 12(e) for a more definite statement is th......
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...at 1111. At least four circuits do not permit sua sponte dismissals without notice and an opportunity to be heard. See Morrison v. Tomano, 755 F.2d 515 (6th Cir.1985); Salibra, 730 F.2d 1059; Jefferson Fourteenth Associates v. Wometco de Puerto Rico, Inc., 695 F.2d 524 (11th Cir.1983); Fran......
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...dismissal with respect to defendant Rogers was appropriate pursuant to Rule 12(b)(6) and this Court's precedent, citing Morrison v. Tomano, 755 F.2d 515 (6th Cir.1985). This timely appeal followed. II. We review de novo the district court's dismissal for failure to state a claim upon which ......
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