filed: September 19, 1990; As Corrected September 24, 1990.
On Appeal From the United States District Court For the Western District of Pennsylvania; D.C. Civil No. 89-00264E.
Becker, Greenberg, Van Dusen, Circuit Judges.
This is an appeal from the sua sponte Fed. R. Civ. P. 12(b)(6) dismissal by the district court of a pro se civil rights complaint after the grant to the plaintiff of leave to proceed in forma pauperis, 28 U.S.C. § 1915(a), but before service of the complaint upon the defendants. The appeal requires us to decide whether the district court properly dismissed the complaint under these circumstances. We conclude that it did not. We will therefore vacate the district court's order and remand for further proceedings.
Plaintiff, Dale Oatess, is an inmate at the State Correctional Institution at Cresson, Pennsylvania. On June 12, 1989, he submitted his civil rights complaint and motion to proceed in forma pauperis to the District Court for the Western District of Pennsylvania.*fn1 Oatess' complaint alleged that defendants had conspired to ensure the dismissal of a civil case which he had filed in the Court of Common Pleas of Erie County, Pennsylvania. The defendants in the federal suit were two state court judges, a prosecuting attorney, several court administrators, and several private attorneys.
The district court referred the case to a United States Magistrate under 28 U.S.C. § 636(b). After granting plaintiff leave to proceed in forma pauperis, the magistrate filed a report, recommending dismissal of the complaint for failure to state a claim upon which relief could be granted.*fn2 The magistrate notified Oatess, as required under 28 U.S.C. § 636(b)(1), that he had ten days in which to file exceptions to the report. Oatess filed timely exceptions, which were reviewed by the magistrate and found to be without merit.*fn3 The district court adopted the report and recommendation, and dismissed the complaint, not as legally frivolous under 28 U.S.C. § 1915(d), but for failure to state a claim upon which relief could be granted, under Rule 12(b)(6). There is no indication in the record that summonses were ever issued to plaintiff or complaints served upon defendants. This appeal followed.*fn4
A complaint that is filed in forma pauperis under 28 U.S.C. § 1915(a) is subject to dismissal by the district court under 28 U.S.C. § 1915(d) only if it is frivolous or malicious. Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989). As Neitzke made clear, a complaint may fail to state a claim upon which relief may be granted under Rule 12(b)(6) but not be frivolous within the meaning of § 1915(d). Id. at 1829. In the ordinary course, if the complaint is not frivolous so as to warrant dismissal at the initiation of the suit under § 1915(d), it should proceed as any civil case would and be governed by the usual civil procedures, including Rule 12(b)(6) if appropriate. This reasoning is implicit in Roman v. Jeffes, 904 F.2d 192 (3d Cir. 1990), where we ruled that a district court could not dismiss an action under 28 U.S.C. § 1915(d) after the granting of in forma pauperis status and the service of the complaint. As we discuss below, this reasoning also leads us to the conclusion that a district court cannot sua sponte dismiss a complaint under Rule 12(b)(6) before service of process.*fn5
While there are no time constraints in Rule 12(b)(6) for the filing of motions or the dismissal of complaints, other procedural requirements suggest that service of process first be accomplished before consideration of dismissal. For instance, Fed. R. Civ. P. 4(a) commands the clerk to issue forthwith a summons to plaintiff upon the filing of a complaint.*fn6 The requirement of 28 U.S.C. § 1915(c)*fn7 that the court shall serve all process also indicates that once leave to proceed in forma pauperis is granted, and the complaint is not dismissed as frivolous under 28 U.S.C. § 1915(d), the case should go forward. Dismissal of the complaint under Rule 12(b)(6) prior to service is inconsistent with these rules, and it interferes with the orderly process of the case. As we explained in Wilson v. Rackmill, 878 F.2d 772 (3d Cir. 1989).
To be dismissed as frivolous, the complaint must lack an arguable factual or legal basis. If the complaint arguably states a claim, then it should go forward so that the defendants can answer and plaintiff can receive notice of the possibility of Rule 12(b)(6) dismissal and the need to amend his complaint in order to properly state a legal claim.
Id. at 774. To allow dismissal under Rule 12(b)(6) prior to service would be to equate this rule with 28 U.S.C. § 1915(d), an interpretation the Supreme Court rejected in Neitzke.
Other concerns arise if dismissal under Rule 12(b)(6) occurs before service of process. In bypassing the procedural requirement of service and acting without the opposing party's input, the district court bypasses our tradition of adversarial proceedings. The judge may be perceived as having abandoned the role of neutral arbiter. Ricketts v. Midwest National Bank, 874 F.2d 1177, 1184 (7th Cir. 1989); Tingler v. Marshall, 716 F.2d 1109, 1111 (6th Cir. 1983); Franklin v. State of Oregon, 662 F.2d 1337, 1342 (9th Cir. 1981). While a judge could always give notice that the complaint might not pass muster under Rule 12(b)(6) and invite a responsive memorandum, when this is done before service of process the court may appear to be conducting a ...