No. 77-1969 Summary Calendar.

558 F.2d 257 (1977)

Robert RASBERRY, Plaintiff-Appellant, v. David SPRADLING, etc., et al., Defendants-Appellees.

United States Court of Appeals, Fifth Circuit.

August 26, 1977.

Attorney(s) appearing for the Case

Sam F. Baxter, Dist. Atty., Harrison County, Marshall, Tex., for defendants-appellees.

Before COLEMAN, GODBOLD and TJOFLAT, Circuit Judges.


This is a § 1983 prisoner civil rights case. Rather than ruling on the sufficiency of the complaint under standards of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the court referred the matter to a Magistrate who made an independent, ex parte factual investigation, including interviews of one or more witnesses.

The Magistrate concluded that plaintiff could not prove any set of facts that would entitle him to recover, and recommended that the case be dismissed as frivolous. The district court accepted the recommendation and dismissed the suit as frivolous. This does not comport with the Federal Rules of Civil Procedure or the governing case law.

VACATED and REMANDED for reconsideration under correct legal standards.


* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.


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