IRVING R. KAUFMAN, Chief Judge:
More than a quarter century ago, Judge, later Chief Judge, Clark cautioned against "judicial haste which in the long run makes waste". Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir. 1944). His condemnation of premature dismissals based solely on the words in the pleading applies with added force when the action is terminated prior to service of process on the opposing party. We hold that Judge Port's sua sponte dismissal of a prisoner's pro se complaint for failure to state a federal claim was improper, where the complaint alleged a violation of 42 U.S.C. § 1983, the adverse parties had not been served, and both plaintiff and defendants were deprived of the opportunity to respond. Accordingly, we vacate the order of dismissal and remand for further proceedings.
On October 17, 1975, Lewis, then serving a sentence for bank robbery,
In the ensuing months, a second $20.00 money order, an additional $10.00 gift, and all the wages Lewis earned were applied against the alleged debt. By January 26, 1976, when Lewis sought leave to file his complaint in forma pauperis, approximately $70.00 had been taken from his commissary account. During this period Lewis was deprived of supplemental food and tobacco, and claims this loss caused him serious physical and emotional distress.
Lewis' three-page pro se complaint, written in longhand, recounted the tale just told. Although perhaps misleadingly denominated a "Complaint for Conversion" the document clearly stated that "jurisdiction" was based on 42 U.S.C. § 1983. Lewis accompanied the complaint with an affidavit and motion to proceed in forma pauperis.
Judge Port, in a memorandum and order dated January 29, 1976, directed that leave to proceed in forma pauperis be granted so the complaint could be filed without payment of the requisite fee. He then ordered the action "denied and dismissed", holding that the complaint alleged "if anything" the tort of conversion, and concluding that "no federal or constitutional claim is presented". Since the action was dismissed almost simultaneously with its filing, defendants, the State of New York, the state Commissioner of Correctional Services, and the Superintendents of Clinton and Bayview, were never served with copies of the complaint or summons.
We have criticized sua sponte dismissals of pro se complaints in several recent cases emanating in the Northern District.
If defendants had moved to dismiss for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Lewis would have received notice of the challenge to the sufficiency of his complaint. He would have had an opportunity to respond by seeking leave to amend, or setting forth arguments supporting the validity of his claim. Because Judge Port dismissed sua sponte, however, Lewis did
In the oft-cited case of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the Supreme Court held that a trial court cannot dismiss a complaint for failure to state a claim until it has "assumed jurisdiction over the controversy." In this case, Judge Port explicitly dismissed the complaint because "no federal or constitutional claim is presented". Yet his ruling was made before any adverse party was joined in the litigation and rested solely on the face of Lewis' complaint. It would appear, therefore, that the Court had not assumed jurisdiction within the meaning of Bell v. Hood, supra. Thus, dismissal of the action was premature.
Untimely dismissal may prove wasteful of the court's limited resources rather than expeditious, for it often leads to a shuttling of the lawsuit between the district and appellate courts. The undesirable consequences of premature dismissal are amply illustrated by the awkward posture this case presents on appeal. Lewis, having had his action dismissed for failure to state a claim, asks us to rule on the sufficiency of his complaint. The State of New York and the other defendants, however, refuse to defend the propriety of Judge Port's order. They have never been made parties to the action, and decline to waive their right to service. Accordingly, they have not briefed the question of the sufficiency of Lewis' complaint.
Lewis contends the State was not prejudiced by its failure to be served below, since the trial judge's decision was favorable to it. But New York would be injured if it were now forced to abjure the full panoply of litigation strategies available to the typical defendant, and asked to respond solely to the issues raised by Lewis on appeal. It argues this is not a case of "looking a gift horse in the mouth" for the gift may prove burdensome in an effort to defend the judge's ruling on appeal. The State urges that if it had proceeded in the trial court, it might have declined to make a motion to dismiss, and instead sought summary judgment whereby it could deny plaintiff's factual assertions, a resolution more likely to withstand appeal.
In any event, de novo consideration of a motion to dismiss pursuant to 12(b) of the Federal Rules of Civil Procedure is better left to district courts. It would be unfair to limit New York to the arguments advanced in Judge Port's memorandum. Any contentions by both plaintiff and defendants should be sifted and evaluated by a trial court before reaching this forum. Accordingly, we decline to determine whether Lewis' complaint states a federal or constitutional claim.
Since, as we have noted, Judge Port's dismissal was premature, we vacate the order of dismissal, and remand for service of process and further proceedings consistent with this opinion.