Thomas v. Scully
| Decision Date | 16 September 1991 |
| Docket Number | D,No. 123,123 |
| Citation | 943 F.2d 259 |
| Parties | Herbert THOMAS, Plaintiff-Appellant, v. Charles SCULLY, Superintendent of Green Haven CF, and Central Office Review Committee, State of New York Department of Corrections, Defendants-Appellees. ocket 90-2459. |
| Court | U.S. Court of Appeals — Second Circuit |
Charles F. Lacina, New York City, for plaintiff-appellant.
Before KEARSE, MINER and McLAUGHLIN, Circuit Judges.
Plaintiff Herbert Thomas, a New York State prisoner, appeals from a final judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Chief Judge, dismissing his pro se complaint which contended that his rights under the First Amendment to the Constitution were violated by a policy promulgated by defendant Charles Scully, Superintendent of Green Haven Correctional Facility, prohibiting inmates from possessing noncommercial nude photographs. Thomas complained that prison officials, pursuant to that policy, confiscated nude photographs mailed to him by his girlfriend and returned them to the sender. The district court, sua sponte, dismissed the complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 1915(d) (1988) on the ground that the regulation was rationally related to the goal of maintaining prison security, and thus Thomas's claim did not rise to the level of a constitutional violation. On appeal, now represented by appointed counsel, Thomas contends that the court erred (1) in ruling on the complaint without giving him an opportunity to be heard, and (2) in concluding that the challenged regulation was permissible. For the reasons below, we agree with the procedural contention and remand for further consideration of the merits.
Though the district court has the power to dismiss a complaint sua sponte for failure to state a claim on which relief can be granted, it may not properly do so without giving the plaintiff an opportunity to be heard. See, e.g., Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir.1988); 5A C. Wright & A. Miller, Federal Practice and Procedure § 1357, at 301 (1990) (). Section 1915(d) gives the court the power to dismiss a pro se complaint sua sponte if the complaint is frivolous. A complaint may fail to state a claim on which relief may be granted without being frivolous....
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Emilee Carpenter, LLC v. James
...to state a claim on which relief can be granted," so long as it gives "the plaintiff an opportunity to be heard." Thomas v. Scully , 943 F.2d 259, 260 (2d Cir. 1991). Plaintiff has had an opportunity to be heard on the legal viability of her claims in conjunction with the State's motion to ......
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Douglas v. N.Y. State Adirondack Park Agency
...due process claim against the AC Defendants. See Wachtler v. Herkimer Cnty., 35 F.3d 77, 82 (2d Cir.1994); Thomas v. Scully, 943 F.2d 259, 260 (2d Cir.1991) (per curiam). For all of these reasons, the Court dismisses Plaintiffs' procedural due process claim against the AC Defendants. Howeve......
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MPM Silicones, LLC v. Union Carbide Corp.
...to state a claim upon which relief may be granted” if the complaint lacks an arguable basis either in law or fact. Thomas v. Scully, 943 F.2d 259, 260 (2d Cir.1991); Ideyi v. State Univ. of N.Y. Downstate Med. Cntr., No. 09–CV–1490, 2010 WL 3938411, at *7 (E.D.N.Y. Sept. 30, 2010) (“A distr......
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Townsend v. Pub. Storage Inc.
...a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous). To ......