Nichols v. Schubert, 73-1940.
| Decision Date | 22 May 1974 |
| Docket Number | No. 73-1940.,73-1940. |
| Citation | 499 F.2d 946 |
| Parties | William Louis NICHOLS, Plaintiff-Appellant, v. Edward F. SCHUBERT, M. D., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Anthony J. Theodore and Charles Bennett Vetzner, Corrections Legal Services Program, Madison, Wis., for plaintiff-appellant.
Robert W. Warren, Atty. Gen., Gary L. Carlson, Asst. Atty. Gen., Madison, Wis., for defendant-appellee.
Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and SPRECHER, Circuit Judge.
Plaintiff's pro se complaint under the civil rights statutes, attacking the visiting privileges of the state hospital where plaintiff is under commitment, was received by the court clerk's office on September 17, 1973. On September 21, 1973, the court granted the plaintiff leave to proceed in forma pauperis and, in the same opinion and order, the court on its own motion dismissed the complaint for failure "to set forth any actionable claim." No summons was ever issued by the clerk nor served upon the defendant.
Rule 4(a), Fed.R.Civ.P. provides that "upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to a person specially appointed to serve it."
In Vina v. Hub Electric Co., 480 F.2d 1139, 1140 (7th Cir. 1973), we held that "Rule 4(a) of the Federal Rules of Civil Procedure provides a clear mandate to the clerk to immediately issue a summons and deliver it to the marshal for service."
In Vina, we reversed a dismissal where the plaintiff filed a pro se complaint. After the district court denied his requests for appointment of counsel and leave to proceed in forma pauperis, he paid the filing fee and thereafter obtained counsel through the Legal Aid Bureau, but summons was not issued. In Dear v. Rathje, 485 F.2d 558, 560 (7th Cir. 1973), the plaintiff also filed a pro se complaint and apparently had paid the filing fee, but summons was not issued. We vacated a sua sponte dismissal of the complaint, saying:
We do not reach the merits of the order dismissing the complaint. To do so, we should have to deliver an advisory opinion, for until defendants have been summoned to appear and given some opportunity to respond to the complaint, we cannot know that there is a live controversy between the parties.
Here also a pro se complaint was filed by the plaintiff but instead of paying the filing fee, he sought and was granted leave to proceed in...
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Estelle v. Gamble
...were even commenced. At least one Circuit has held that dismissal without service on the defendants is improper, Nichols v. Schubert, 499 F.2d 946 (C.A.7 1974). The Court's disposition of this case should not be taken as an endorsement of this practice since the question was not raised by t......
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Franklin v. State of Or., State Welfare Division
...4(a) requires "the clerk to immediately issue a summons and deliver it to the marshal for service" without exception. Nichols v. Schubert, 499 F.2d 946, 947 (7th Cir. 1974); Vina v. Hub Electric Co., 480 F.2d 1139, 1140 (7th Cir. The Second Circuit has reversed several sua sponte dismissals......
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Osborn v. Emporium Videos
...interpreted to require that a summons be issued and served before a complaint may be dismissed. Id. (citing Nichols v. Schubert, 499 F.2d 946, 947 (7th Cir.1974); Dear v. Rathje, 485 F.2d 558 (1973), aff'd 532 F.2d 756 (7th Cir.1976); and Vina v. Hub Electric Co., 480 F.2d 1139, 1140 (7th C......
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State Prisoners, Federal Courts, and Playing by the Rules: an Analysis of the Aldisert Committee's Recommended Procedures for Handling Prisoner Civil Rights Cases
...R. Civ. P. 4(a). This unstartling observation is, nonetheless, a subject of disagreement among the circuits. Compare Nichols v. Schubert, 499 F.2d 946 (7th Cir. 1974) (requiring immediate service of process) with Jones v. Bales, 58 F.R.D. 453 (N.D. Ga. 1972), aff'd, 480 F.2d 805 (5th Cir. 1......