Appellant Jack Griffith filed this civil rights action pro se, alleging denial of rights guaranteed by the United States Constitution arising from a prison regulation requiring all "routine" mail posted at the prison mail room to be tendered in unsealed envelopes for inspection by Appellee Beatrice Riddle. The United States District Court for the Middle District of Florida granted Appellees' motion for summary judgment, finding no material issue of fact in controversy and Appellees entitled to judgment as a matter of law. We granted Appellant's motion to proceed in forma pauperis. We VACATE the opinion below and REMAND this case for further consideration by the District Court.
On December 28, 1983, Appellant Griffith presented a sealed, post-paid business reply envelope, pre-addressed to the Flagler National Bank, to Appellee Riddler, Mailroom Officer of the Avon Park Correctional Institution [hereinafter "APCI"] operated by the State of Florida. Riddle refused to accept the envelope for posting, relying on Institutional Operating Procedure Section IV, 2.07.09 entitled "Inmate Correspondence," which rule provides that APCI has the right to examine and review all incoming and outgoing mail of a routine nature.
On January 23, 1984, Appellant brought a pro se action in the court below under 42 U.S.C.A. § 1983 (1981) alleging that the APCI policy requiring him to tender routine mail to prison employees for screening before posting violated his right of freedom of speech and his right to privacy protected by the United States Constitution. He sought injunctive relief as well as compensatory and punitive damages in the amount of $15,000. The district court below granted Appellant's motion to proceed in forma pauperis.
The Appellees filed timely motions to dismiss for failure to state an actionable claim under Fed.R.Civ.P. 12(b)(6) and alternatively for summary judgment under Fed.R.Civ.P. 56, admitting that it was the policy of the APCI to refuse to post routine, sealed envelopes that had not been screened by prison personnel. Appellees argued that because the policy was valid, reasonable, and applied to Appellant in good faith, they were entitled to judgment as a matter of law.
Appellant filed a response to Appellees' motions alleging that Appellee Riddle had abused her discretion under the rules by refusing to post the sealed envelope.
On December 13, 1984, the district court rejected the motion to dismiss for failure to state a claim because resolution of the controversy required the court to rely upon information without the pleadings. However, the court found that there was no material issue of fact presented, that the envelope in question was of the routine sort covered by the regulation, that the regulation was consistent with the holding of the United States Supreme Court in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), and accordingly that the rule passed constitutional muster. The court granted Appellees' motion for summary judgment. Griffith appealed that judgment on January 3, 1985.
Although this case comes before us in the posture of a First Amendment case, we find it unnecessary to reach the question of whether the Appellant here stated a meritorious claim on the constitutional question. Instead, we are compelled by our own precedents to note sua sponte that the court below failed to adhere to the dictates of Fed.R.Civ.P. 56(c), which rule requires that summary judgment cannot be entered against a party unless that person has been given express notice, ten days in advance, of his rights under that rule and how he might best defend them.
THE REQUIREMENT OF NOTICE:
For the fifth time in four years this Court is forced to return to a busy district court a pro se case for failure to adhere to the notice requirement of Rule 56(c). We have held repeatedly that this requirement of notice will be deemed strictissimi juris and applies to all parties litigant. Milburn v. United States, 734 F.2d 762, 766 (11th Cir.1984) ("[T]his court has established a `bright-line' test requiring 10-day advance notice that the court will take a motion for summary judgment under advisement as of a certain date"); Finn v. Gunter, 722 F.2d 711, 713 (11th Cir.1984) ("This circuit has consistently upheld the strict notice requirements of rule ... 56(c)"); Moore v. State of Florida, 703 F.2d 516, 519-20 (11th Cir.1983) ("Generally, `the 10-day notice requirement of Rule 56(c) is strictly enforced.'"); Herron v. Beck, 693 F.2d 125, 126 (11th Cir.1982) ("It is well established in this circuit that the ten-day notice requirement of Rule 56(c) is strictly enforced.").
While it is well settled in this Circuit that this requirement does not of necessity require that such notice be given at an oral hearing, Moore, 703 F.2d at 519, our jurisprudence requires at least this: that an adverse party must be given express, ten-day notice of the summary judgment rules, of his right to file affidavits or other material in opposition to the motion, and of the consequences of default. That done, the court may properly take the motion under advisement as of a day certain and may rule on the motion consistent with the dictates of procedural fairness required by Rule 56. Moore, 703 F.2d at 519; Kibort v. Hampton, 538 F.2d 90, 91 (5th Cir.1976).
We have also recognized the especial care which must be exercised when an action is brought alleging denial of basic constitutional liberties by an indigent prisoner lacking formal legal training. Such parties "occupy a position significantly different from that occupied by litigants represented by counsel." Moore, 703 F.2d at 520. In such cases, as in that before us today, "a court should be particularly careful to ensure proper notice to a pro se litigant," Herron, 693 F.2d at 127, so that any rights that such a litigant might have will not be extinguished merely through failure to appreciate the subtleties of modern motion practice.
VACATED and REMANDED.
APCI regulations also provide that communication of a "legal" or "privileged" nature, as defined in § III, Institutional Operating Procedure 3.03.03 "Preparation of Legal Documents, Legal Mail, and Privileged Mail" is exempt from screening by prison employees.