Neal v. Kelly

• Decision Date: 19 May 1992
• Docket Number: No. 90-7071,90-7071
• Parties: , 22 Fed.R.Serv.3d 722 James H. NEAL, Appellant, v. Sharon Pratt KELLY, Mayor, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 453

963 F.2d 453

295 U.S.App.D.C. 350, 22 Fed.R.Serv.3d 722

James H. NEAL, Appellant, v. Sharon Pratt KELLY, Mayor, et al., Appellees.

No. 90-7071.

United States Court of Appeals, District of Columbia Circuit.

Argued April 10, 1992.

Decided May 19, 1992.

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.

I. FACTUAL BACKGROUND

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:

COMPLAINT FOR VIOLATION OF

CIVIL RIGHTS INSTRUCTIONS FOR FILING A COMPLAINT

BY A PRISONER UNDER THE CIVIL RIGHTS

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 [sic] Request for Dismissal," along with an accompanying memorandum. The memorandum does not artfully present an exposition of issues or legal argument in support of Neal's claim, but read generously it addresses the impropriety of the original characterization of his claim as one of habeas corpus, and expresses his position that his claim for excessive force had been left unaddressed. Neal's response did not suggest that he understood the significance of the exhibits and affidavits accompanying the defendants' filing.

On February 20, 1990, Neal attempted to commence discovery in the case by filing a set of interrogatories and a request for production of documents. Defendants did not respond, but on March 26, 1990, the court filed an order granting summary judgment in favor of defendants, accompanied by a Memorandum Opinion. In the final order, the court stated that, because "this court is relying on matters outside the pleadings ... defendants' motion to dismiss will be treated as a motion for summary judgment. Fed.R.Civ.P. 12(b)(6)." This is the first mention of summary judgment in the record of the case. In disposing of the case, the court found that "[a]lthough plaintiff has had ample time to supplement the record, he has failed to do so," and concluded that "plaintiff's unsupported allegations cannot withstand defendants' motion for summary judgment." Neal v. Barry, No. 88-3169, slip op. at 3 (D.D.C. filed Mar. 26, 1990).

II. ANALYSIS

A. The Failure of Notice

We think the conclusion inescapable that we must reverse the granting of summary judgment and remand this case for further proceedings. The district court was correct that "if, on a [12(b)(6) ] motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Fed.R.Civ.P. 12(b). We further agree with the district court's implicit conclusion that the filing need not be labelled as a motion made under 12(b)(6) for that procedure to apply. See Lewis v. Faulkner, 689 F.2d 100, 101 (7th Cir.1982). But the difficulty is that Rule 12(b) does not end with the quoted language. Under the Rule, the motion is to be disposed of as provided in Rule 56 only after "all parties [are] ... given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." (Emphasis added.) This crucial condition was not met in the present case.

In Lewis, the Seventh Circuit considered a case strikingly similar to this one. Plaintiff Lewis was, like Neal, an incarcerated convict. Like Neal, he filed pro se a complaint under 42 U.S.C. § 1983 against prison officials alleging a denial of due process in a disciplinary proceeding. At this point the facts diverge slightly, but only in a way that makes Lewis's case a weaker one than Neal's. There, the officials filed an appropriately styled motion asking dismissal of the complaint under Rule 12(b)(6), or in the alternative, summary judgment. That motion, like the present filing, was accompanied by affidavits contradicting facts alleged in the complaint. Neither the motion papers nor any instructions from the court informed Lewis--as no motion papers or instructions from the court informed Neal here--of the consequence of his failing to counter the defendant's affidavit with affidavits of his own.

In sum, Lewis, like Neal, did not receive the notice required by Rule 12(b). There, as we noted, the motion papers did mention summary judgment, though neither there nor here did the papers cite Rule 56. Thus, the plaintiff in Lewis, if anything, had greater notice than the plaintiff in the present case.

The Seventh Circuit held in Lewis, and we hold here, that

irrespective of any implications of the due process clause of the Fifth or Fourteenth Amendments, ... a district court cannot properly act on a motion for summary judgment without giving the opposing party a reasonable opportunity to submit affidavits that contradict the affidavits submitted in support of the motion and demonstrate that there is a genuine issue of material fact.

689 F.2d at 101. We further agree with our sibling circuit that the "reasonable opportunity presupposes notice," and that "[m]ere time is not enough, if knowledge of the consequences of not making use of it is wanting." Id. at 102.

We think this general principle is especially applicable to litigants like Neal. As the Lewis court concluded, "a prisoner ... not represented by counsel is entitled to receive notice of the consequences of failing to respond with affidavits to a motion for summary judgment." Id. at 102.

This is consistent not only with the law of other circuits, see, e.g., Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975), and Whiting v. Maiolini, 921 F.2d 5 (1st Cir.1990), but also our own precedent. In Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C.Cir.1968), we held that the district court should have provided the plaintiff in that case, a prisoner proceeding pro se, with "as a bare minimum ... fair notice of the requirements of the summary judgment rule."

We would further stress, as we did in Hudson, that mere technical notice of the requirements of the summary judgment rule "cannot be expected in every case fully to compensate for the handicaps resulting from detention and indigency." Id. at 1094-95. Therefore, we hope that in future cases, counsel for incarcerating governmental defendants will assist district judges in bearing their burden by including in motions for summary judgment directed at actions by pro se plaintiffs,

a short and plain statement that any factual assertion in the movant's affidavits will be accepted by the district judge as being true unless the plaintiff submits his own affidavits or other documentary evidence contradicting the assertion. The text of Rule 56(e) should be part of the notice, but in addition to rather than instead of the statement in ordinary English that we are requiring.

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