Richard L. Tingler, Jr. v. Ronald Marshall
716 F.2d 1109
6th Cir.
1983
Check Treatment

*1 construed, liberally intent that Act be provisions

nowhere indicates that TINGLER, Richard L. anything protecting directed to more than Plaintiff-Appellant, against retaliation for the filing of provision plaints, frequently a MARSHALL, Defendant-Appellee. Ronald Thus, legislation.2 found in similar No. 81-3017. clear is an though it that section Act, important of part enforcement of the United States express Congress there is no indication that Sixth to be protect intended it read to anything Argued May 1983. more reporting safety actual of Sept. 1983. complaints.3 Accordingly, the decision of the Federal

Mine and Safety Health Review Commis- sion is REVERSED. Kennedy, Cong.Rec., (daily Sept. 30, Remarks Senator intro- who S27947-51 ed. section, 1969) (Statement history regard- Kennedy), reprinted duced the are the of Sen. ing Legislative History section 110. The Senator stated: in The of Federal Coal Safety Mine Health & Act of 1969 at 666-68. President, is, Mr. I believe a noncontro- My proposed versial matter. amendment 3. The Commission’s decision could affirmed any person would make it unlawful finding unnecessary if a of intent is discharge against or otherwise discriminate a intent, language Act. With bringing suspected miner for of violations of the 1969 Act similar to in the of act to attention authorities. Compare Act, amendments. the 1969 essence, gives the amendment miners 820(b)(1) (1976) U.S.C. § amended U.S.C. protection against same retaliation 815(c)(1) 1980) (Supp. (“No person IV shall give employees under other labor Federal against any ... discriminate ... miner ... result, a laws. As miners will feel free reason the fact that such miner ... has point safety out health and hazards which Secretary ....”), notified the with the 1977 designed prevent this act is and correct. Amendment, 815(c)(1) (Supp. IV * * * * * 1980) (“No person shall ... discriminate President, Mr. rationale this amend- against ... miner ... because miner sake, safety’s ment is clear. For want complaint.”) (emphasis ... has filed or made a encourage reporting suspected viola- added) Considering proof burden safety regulations. health and Sec- “mixed motive” our court evaluated the 301(h) bill, page tion confirms liberalized 1977 Act Boich Federal Mine by calling inspec- this concern for immediate Safety Comm’n, Review Health representative whenever of miners be- required plain- found it lieves there be violation of health to show tiff that he would not have safety charged protected activity. standards. “but for” the There speak up But miners will fear nearly is therefore no to believe that the reason This operative language retaliation. amendment should deter identical in the 1969 Act retaliation, and, therefore, encourage and, similarly not be should construed bring dangers course, suspected finding miners to viola- here factual the ALJ’s there public tions to attention. was motive to discriminate because min- provisions reported unchallenged of this amendment are simi- ers the incident remains protections lar to labor laws. the Commission.

CONTIE, Judge. Circuit us before is whether question The dismissal of the district court’s merits, complaint prior on the complaint upon the defendant op- providing and without complaint amend his or other- portunity to respond, was adhere to proper. wise in Brown v. Stick- statements previous ler, Cir.1970) and Martin 422 F.2d (6th Cir.1973) Johnson, 471 F.2d are not favored court’s we vacate district and remand the case.

I. 1980, 25, plaintiff, November

On Correctional at the Southern Ohio a 42 1983 action Facility, U.S.C. § rights his had alleging that constitutional of con- prison’s policy infringed prison vis- strip searches ducting random plaintiff’s pro complaint The itors. female visitor of leged that a search. strip to a random pelled submit searches, contended that such The cause, probable constituted unsupported by upon sought declaratory He to free association. injunctive relief. complaint was day that The same filed, dismissed the action the district court the restric- ground Tingler, pro se. Richard under Bell upon proper visitors were River, Ohio, Clark, Rocky Ste- Dexter W. 1861, Wolfish, 99 S.Ct. U.S. Ohio, Dayton, M. for (argued), ven Fitten complaint was (1979).1 The L.Ed.2d 447 plaintiff-appellant. parties and the upon served in- not notified of the district court’s Gen., Atty. Asst. Joseph Mastrangelo, C. complaint. tention dismiss the Columbus, Ohio, defendant-appellee. II. BROWN, CONTIE, Judge, Before Circuit ar Senior briefed and Judge, Though parties Senior Circuit court, we before this gued several issues District Judge.* Neese, Supreme Judge, of the United States in Court The Honorable C.G. Wolfish, Judge the Eastern Dis- retired U.S. District 441 U.S. S.Ct. Beil Tennessee, designation. sitting by trict determined that 60 L.Ed.2d within the sound matters such this reside reproduced in full 1. The court’s order is prison authorities and do discretion of the below: under 42 U.S.C. rise for considera- This matter is before Court complaint pursuant of a 42 U.S.C. authority Based complains complaint plaintiff 1983. In his hereby DISMISSED. herein is placed to him at of restrictions visitors the Southern Ohio Correctional Institution.

lili address the claim that Sua dismissals without service or district court’s sua dismissal of his notice are likewise unfair to defendants be- improper. note first they deny “the pano- full court since ply litigation strategies available merits, action on occasion to typical defendant.” 547 F.2d at 6. *3 consider the of sua dis- propriety must, these the defendants on of in forma claims as frivo- pauperis missals appeal, choose between not participating,3 1915(d).2 lous under the 28 Nor do Lewis, or, see supra, case, as in making we address the propriety arguments based factual assertions see, prosecute, e.g., missals failure to which not are in the record. Such are facts Lyles Commercial Lovelace Motor not in the record since the defendant was Inc., (7th Freight, 684 F.2d 501 or never served with the not complaint and did sua sponte dismissals in cases where the have opportunity the to file an answer or jurisdiction. court clearly lacks See pleadings. Strickler, Brown v. (6th F.2d 1000 Cir. dismissal, the Finally, most 1970). Rather, the narrow issue which we likely by district court address involves sua on judicial device for economy, actually results merits, prior to service in the waste of judicial resources. and without notice of the dismiss- proposed at 4. This F.2d action was filed and al respond. to the to allow him to now, 1980 and years over two not Such dismissals are later, arewe faced with appeal accordance our with traditional adversarial plaintiff’s no record other than the com- system justice they because cast the dis- plaint and the district court’s brief order trict court in role proponent of “a rath- dismissing the case. The of any lack factu- er an independent entity.” Franklin al record not only hampers the Division, of Oregon, State State Welfare making his most arguments effective but (9th Cir.1981). F.2d More- prevents also making any us from decision over, such dismissals are not be- favored except one legal grounds. based broad they are unfair the litigants to and For example, argues waste, ultimately judicial rather than save invalid because his York, resources. Id. Lewis v. of New State female visitor was not randomly selected (2d Cir.1976). be searched but rather only searched

Plaintiffs are after prejudiced procedure pass she failed to metal detector followed the district court in test. The defendant also maintains because, visitation, with the plaintiff’s right unlike motions to dismiss if in fact defendants, opportu- have no he right, has such a substantially nity complaints to amend their or make affected since his female visitor visited him legal arguments against the dismissal. The after times she was searched. These facts, prejudice particularly acute with proven, may provided to pro plaintiffs, like the in this basis for dismissal case, who are generally plaint grounds.4 unskilled in the art narrow on Since of pleading. record, however, facts are not in the we recently “[fjrivolity, appellant participates. 2. noted that like ob- Such an occur- WSM, scenity, is often difficult to define.” Inc. hampers ability rence the court’s to make a Co., v. Tennessee Sales 709 F.2d 1084 reasoned decision because there no adversar- Cir.1983). Colyer, in Malone v. However presentation. ial (6th Cir.1982), accept F.2d 258 we did the diffi- defining cult task when an action is “frivo- arguments only 4. We cite defendant’s meaning within lous” of 28 U.S.C. possibility that a decision could illustrate 1915(d). grounds. on have been rendered narrow validity make no comment of those participate, If the do the court arguments. appeals appeal is faced with an in which district court’s decision only affirm may grounds. Because legal

on the broadest AMERICA, Plaintiff-Appellee, with is inconsistent decision-making' court, appellate proper function the case to the remand compelled are NORTON, L. Christine Norton and Irvin court. Vuagniaux, Earl L. Defendants-Appellants, power, supervisory Under with a com a district court faced hold that subject plaint it believes L. and Irvin Earl VUAGNIAUX must: allow dismissal Norton, s-Appellants, Plaintiff defendant; (2) notify upon the the com *4 all its intent dismiss parties of a chance to (3) plaint; give respond or either amend AMERICA, Defendant-Appellee. court in the reasons stated 82-2969. No. dismissal; its notice respond chance United States motions; (5) if the or file answer Seventh dismissed, reasons for the claim is state its May 11, 1983. Argued dismissal. 10, 1983. Aug. court is VA- CATED REMANDED with this proceedings

further consistent on the mer- opinion. We intimate view its claim. District) Judge, (retired

concurring. vacated Judge’s

As the District decision is super- remanded under the matter concur, Court, I under- visory powers do, finds in standing, majority as I a claim this his custodians free association Constitution, First Amendment.