John K. Hake v. Harold W. Clarke , 91 F.3d 1129 ( 1996 )


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  •                                     ___________
    No. 95-1960
    ___________
    John K. Hake,                           *
    *
    Appellant,                *
    *
    v.                                 *
    *
    Harold W. Clarke, Director,             *
    Nebraska Department of                  *
    Correctional Services; Karen            *
    Shortridge, Associate, Director         *    Appeal from the United States
    Adult Institutions, Nebraska            *    District Court for the
    Department of Correctional              *    District of Nebraska.
    Services; Terry Ewing, Security         *
    Coordinator, Nebraska Department*           [PUBLISHED]
    of Correctional Services; Larry         *
    Tewes, Associate Director,              *
    Adult Classification and                *
    Programs, Nebraska Department           *
    of Correctional Services,               *
    *
    Appellees.                *
    ___________
    Submitted:     December 18, 1995
    Filed:   August 2, 1996
    ___________
    Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
    ___________
    PER CURIAM.
    John K. Hake appeals from the district court's sua sponte dismissal,
    under Federal Rule of Civil Procedure 12(b)(6), of his 42 U.S.C. § 1983
    complaint.    We reverse and remand for further proceedings.
    In April 1994, Nebraska inmate Hake filed a civil rights complaint
    in forma pauperis (IFP) against Nebraska Department of
    Correctional Services Director Harold Clarke, Associate Director Karen
    Shortridge, and the Director's Review Committee members Terry Ewing and
    Larry Tewes (defendants), claiming he was unconstitutionally denied a
    transfer from minimum security to community custody.             Hake alleged that,
    after his parole was revoked for alcohol-related reasons in 1991, he was
    returned to Hastings Correctional Center, and in 1992 he satisfied the
    requirements for placement in community custody.          He alleged that the unit
    classification committee members supported his reclassification to work
    release, but that defendants denied him such an assignment without giving
    him the opportunity to appear before them to rebut any adverse aspects of
    the record.    Hake claimed defendants subjected him to cruel and unusual
    punishment by punishing him for being an alcoholic, handicapped person;
    denied him due process; relied on impermissible guidelines to deny him
    community custody and work release; retaliated against him for exercising
    his right of access to the courts; and denied him equal protection.                   Hake
    sought    declaratory     relief,   and    damages.     Hake    attached    copies     of
    correspondence from Shortridge explaining that he was denied community
    custody   because   his    continued      alcohol   problem   posed   a   risk   to   the
    community.    Hake paid the full filing fee in June 1994.
    Under the mistaken impression that Hake was proceeding IFP,                      the
    magistrate judge reviewed the complaint under 28 U.S.C. § 1915(d) and the
    district court's Local Rule 83.10,1 and concluded Hake failed to state a
    claim upon which relief could be granted, but gave Hake leave to amend his
    complaint to cure the deficiencies.           The magistrate judge also concluded
    Hake's Eighth Amendment claim was frivolous.
    Hake amended his complaint, additionally noting that he had
    The magistrate judge noted that Local Rule 83.10(d)(2)
    provided for initial sua sponte review of all pro se complaints
    pursuant to Fed. R. Civ. P. 12(b)(6), whether they are fee-paid or
    IFP.
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    since been reclassified for work release, but that he continued to seek
    monetary damages for the delay.   The magistrate judge reviewed the amended
    complaint under Local Rule 83.10(d), and suggested in his report and
    recommendation, inter alia, that Hake had failed to identify which portions
    of the inmate handbook created a protected liberty interest.     Hake filed
    objections and attached portions of the Adult Inmate Classification Manual
    (Manual).   The district court dismissed the Eighth Amendment claim as
    frivolous, and concluded the magistrate judge should reconsider his
    recommended dismissal of the other claims under Rule 12(b)(6) in light of
    the then-recently decided Carney v. Houston, 
    33 F.3d 893
    (8th Cir. 1994)
    (per curiam).
    Concluding on reconsideration that Hake's equal protection, due
    process, and retaliation claims were not frivolous, the magistrate judge
    ordered the issuance of summonses upon all defendants, but informed
    defendants they were "not required to answer or otherwise respond unless
    and until further notified to do so by order of this court upon completion
    of its initial review of plaintiff's non-frivolous claims."   Simultaneously
    with   the order for summonses, the magistrate judge issued a report
    recommending that Hake had abandoned his equal protection and retaliation
    claims, and that because Hake had not quoted the relevant language which
    allegedly created a protected liberty interest, his due process claim
    should be dismissed under Rule 12(b)(6).   Hake objected to the report.   The
    summonses were issued approximately two weeks later.
    The district court waited until service of process had occurred
    before ruling on the magistrate judge's report and Hake's objections.     The
    district court conducted de novo review, noted that this now was no longer
    a sua sponte dismissal prior to service because defendants had been served,
    and concluded that Hake had failed to state an equal protection or
    retaliation claim.   The court concluded, however, that Hake should be
    granted leave to
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    submit another amended complaint setting forth his due process claim and
    should include specific quotations to the regulations or statutes which he
    believed established a due process right to reclassification.
    Hake filed a second amended complaint which incorporated a copy of
    the Manual.      The magistrate judge again recommended Hake's due process
    claim be dismissed under Rule 12(b)(6), concluding that the Manual did not
    create    a   protected   liberty   interest.   Hake   again   objected.   After
    conducting de novo review, the district court adopted the magistrate
    judge's report and dismissed the action under Rule 12(b)(6).          Hake filed
    a timely notice of appeal.
    On appeal, Hake argues only that the district court erred in denying
    his due process claim.2     Appellees, in what is their first involvement in
    the case, argue that the Manual's provisions do not contain language which
    satisfies the two elements necessary for the creation of a liberty interest
    under Kentucky Department of Corrections v. Thompson, 
    490 U.S. 454
    , 464-65
    (1989).
    I.   Procedural Irregularities
    In Carney v. 
    Houston, 33 F.3d at 895
    , we disapproved the district
    court's practice of dismissing a complaint under Rule 12(b)(6) prior to
    service of process, and pointed out that the district court's Local Rule
    and procedures did not conform to the
    2
    Although Hake does not appeal the dismissal as frivolous of
    his Eighth Amendment claim, we note that the district court erred
    in conducting such a frivolousness review, because Hake had paid
    the filing fee. See In re Funkhouser, 
    873 F.2d 1076
    , 1077 (8th
    Cir. 1989) (per curiam) (dismissal of section 1915(d) complaint as
    frivolous after payment of filing fee not contemplated by Federal
    Rules of Procedure). The section 1915(d) dismissal, however, is
    not a dismissal on the merits and would not prejudice the filing of
    a paid complaint making the same allegations.        See Denton v.
    Hernandez, 
    504 U.S. 25
    , 34 (1992).
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    procedures for reviewing IFP complaints set forth in Gentile v. Missouri
    Department     of   Corrections,       
    986 F.2d 214
    ,      217    (8th     Cir.   1993).
    Understanding that nonfrivolous claims could not be dismissed prior to
    service of process under Rule 12(b)(6), the magistrate judge here ordered
    the complaint to be served, and simultaneously recommended dismissal under
    Rule 12(b)(6) before defendants filed any responsive pleadings.
    We   conclude   that    ordering      service      of    process      but   deferring
    defendants' obligation to respond was not a procedure contemplated by the
    Federal Rules of Civil Procedure or supported by case law.                  Implicit in the
    requirement of service of process before dismissal under Rule 12(b)(6) was
    that the parties, not the court, would litigate the issues, and that these
    cases would proceed in the ordinary manner.                The Rules contemplated that
    after    a   fee-paid   complaint     was    filed,   it   was    to   be     served   on   the
    defendants; that defendants either answered or filed responsive pleadings,
    giving notice to plaintiffs of any defenses or pleading deficiencies; and
    that plaintiffs could then respond or seek leave to amend their pleadings,
    which leave was to be freely given when justice required.                           The Rules
    contemplated a litigant-directed process at the initial stages, but the
    procedure at issue in this case interjected a review by a judicial officer
    into the process.         Although plaintiffs may have been provided certain
    "legal advice" which may have proved valuable in saving their actions from
    ultimate dismissal, this judicial intervention placed the judicial officer
    in the role of defense counsel, plaintiff's counsel, and judge, and
    deprived     plaintiffs    of   the   "considerable        benefits    of     the   adversary
    proceedings contemplated by the Federal Rules."                 Neitzke v. Williams, 
    490 U.S. 319
    , 330 (1989).           To order service of process but not require
    defendants to respond ignored the spirit, and undermined the purpose, of
    the service requirement.        Thus, we conclude that issuance of "no-answer"
    summonses was improper, and that defendants should have been directed to
    answer or file responsive pleadings in accordance with the Federal Rules.
    -5-
    Notwithstanding our admonition in Carney v. 
    Houston, 33 F.3d at 895
    ,
    that Local Rule 83.10(d) authorized the magistrate judge to act in a manner
    contrary to the Federal Rules, the district court continued to proceed
    under it.    Neither Neitzke nor section 1915(d) authorized courts initially
    to review claims filed by a fee-paying pro se litigant in the same way that
    they reviewed IFP complaints.     We find no support for the district court
    to have conducted a frivolousness review of non-IFP pro se complaints, or
    to have conducted an initial review of all pro se complaints under Rule
    12(b)(6) before service of process and responsive pleadings.3   Accordingly,
    we conclude that the procedures set forth in Local Rule 83.10(d)(2) did not
    comply with the Federal Rules nor with our circuit's precedents.
    II.     Merits
    Since the district court's order, the Supreme Court decided Sandin
    v. Conner, 
    115 S. Ct. 2293
    (1995), which discussed the historical shift in
    "focus of the liberty interest inquiry to one based on the language of a
    particular regulation, and not the nature of the deprivation."        
    Id. at 2299.
       The Court concluded that "[t]he time ha[d] come to return to the due
    process principles" enunciated in those cases recognizing that States may
    create liberty interests protected by the Due Process Clause, but generally
    limiting those interests to freedom from restraint which imposed "atypical
    and   significant hardship on the inmate in relation to the ordinary
    incidents of prison life."     
    Id. at 2300.
            Although the due process right Hake asserts here is an alleged
    Effective April 26, 1996, courts have the authority to screen
    a prisoner complaint to determine if the complaint is frivolous or
    malicious, fails to state a claim upon which relief can be granted,
    or seeks monetary relief from a defendant who is immune from such
    relief. See Prison Litigation Reform Act, Pub. L. No. 104-134,
    § 805, 110 Stat. 1321, ____ (1996) (to be codified at 28 U.S.C.
    § 1915A).
    -6-
    right to greater freedom, rather than protection from greater restraint,
    we believe the same "nature of the interest" analysis is required, and the
    Thompson test, on which the district court relied in determining whether
    the State had created a liberty interest, may no longer be good law.   Thus,
    we remand for further proceedings, including an analysis of Sandin in the
    first instance by the district court.
    Accordingly, we reverse and remand this case to the district court
    for further proceedings consistent with this opinion.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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