STANFORD SHANE; OTIS TERRELL; ROBERT STEWART, Appellants v. WILLIAM FAUVER, Commissioner; JAMES BARBO, Administrator; ROGERS, Chief; DIRECTOR OF CUSTODY
No. 98-6205
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
May 19, 2000
2000 Decisions. Paper 104.
Before: ALITO and STAPLETON, Circuit Judges, and FEIKENS, Senior District Judge.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (Dist. Court No. 97-cv-03401) District Court Judge: Joseph A. Greenaway, Jr. Argued: November 16, 1999
Jon Hogue (argued) Hogue & Lannis 3400 Gulf Tower Pittsburgh, PA 151219
Attorneys for Appellants
John J. Farmer, Jr., Attorney General of New Jersey Mary C. Jacobson, Assistant Attornеy General of Counsel Larry R. Etzweiler, Senior Deputy Attorney General (argued) R.J. Hughes Justice Complex P.O. Box 112 Trenton, New Jersey 08625
Attorneys for Appellees
ALITO, Circuit Judge:
Stanford Shane, Otis Terrell, and Robert Stewart, prisoners at New Jersey‘s Northern State Prison, aрpeal the dismissal of their complaint under
I.
The plaintiffs’ comрlaint in this case asserted claims against three state correctional officials under the First, Eighth, and Fourteenth Amendments to the Constitution of the United States, as well as under the New Jersey Constitution. Although proceeding pro se, the plaintiffs paid the full filing fee. The defendants filed a motion to dismiss the complaint under
When the appeal was first considered by a panel of this court, that panel entered an order directing that counsel be appointed to represent the plaintiffs on apрeal and instructing counsel to brief the issue whether the PLRA mandated the dismissal of the plaintiffs’ claims without leave to amend. New briefs were then filed by both sides, and the appeal was argued before this panel.
Plaintiffs’ counsel contends that the District Court should not have dismissed without giving leave to amend and, in any event, should not have dismissed with prejudice. The defendants respond that the manner in which the District Court disposed of the case was required by the PLRA. According to the defendants, if a complaint falling within the PLRA fails to state a claim upon which relief may be granted, the District Court must dismiss without leave to amend and with prejudice.
II.
Rule 15(a) of the Fedеral Rules of Civil Procedure permits a party to amend a pleading “once as a matter of course at any time before a responsive pleading is served.” A motion to dismiss for failure to state a claim must be made “before pleading if a further pleading is permitted.”
“Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (“Burlington“); Lorenz v. CSX Corp., 1 F.3d 1406, 1413-14 (3d Cir. 1993). “Futility” mеans that the complaint, as amended, would fail to state a claim upon which relief could be granted. Burlington, 114 F.3d at 1434. In assessing “futility,” the District Court applies the same standard of legal sufficiency as applies under Rule 12(b)(6). Id.; 3 Moore‘s Federal Practice, supra S 15.15[3], at 15-47 to -48 (3d ed. 2000). Accordingly, if a claim is vulnerable to dismissal under Rule 12(b)(6), but the plaintiff moves to amend, leave to amend generally must be granted unless the amendment would not cure the deficiency.
The Federal Rules of Civil Procedure do not address the situation in which a deficiency in a complaint could be cured by amendment but leave to amend is not sought. Circuit case law, however, holds that leave to amend must be given in this situation as well. In Borelli v. City of Reading, 532 F.2d 950 (3d Cir. 1976), this court stated that a district court should use the following procedure in dismissing a complaint for failure to state a claim:
[W]e suggest that district judges expressly state, where appropriate, that the plaintiff has leave to amend within a specified period of time, and that application for dismissal of the action may be made if a timely amendment is not forthcоming within that time. If the plaintiff does not desire to amend, he may file an appropriate notice with the district court asserting his intent to stand on the complaint, at which time an order to dismiss the action would be appropriate.
Borelli, 532 F.2d at 951 n.1. In Darr v. Wolfe, 767 F.2d 79 (3d Cir. 1985), we stated:
[T]his court has consistently held that when an individual has filed a complaint under S 1983 which is dismissable [sic] for lack of factual specificity, he should be given a reasonable opportunity to cure the defect, if he can, by amendment of the complaint and that denial of an application for leave to amend under these circumstances is an abuse of discretion.
These cases were followed by District Council 47 v. Bradley, 795 F.2d 310 (3d Cir. 1986), in which the court held that, if the complaint in that case was deficient, the District Court should have followed the procedure outlined in Borelli and granted leave to amend even though the plaintiff, which was represented by experienced counsel,1 had never sought leave to amend. District Council 47, 795 F.2d at 316. The court observed that “we have never required plaintiffs to request leave to amend following a district court‘s dismissal of a complaint.” Id. If the rules set forth above are applied to this сase, it is apparent that the District Court should not have dismissed the plaintiffs’ claims without either granting leave to amend or concluding that any amendment would be futile.
The defendants maintain, however, that the enaсtment of the PLRA altered these rules. The PLRA contains several provisions that address the dismissal of a complaint for failure to state a claim,2 but because the plaintiffs here did not proceed in forma рauperis and because their complaint was dismissed on motion by the defendants and not sua sponte by the court, only one of those provisions is applicable. We therefore focus our analysis оn the effect of this provision and do not reach the other provisions that apply to sua sponte dismissals and in forma pauperis cases.
The provision that applies here, PLRA S 803(d) provides in pertinеnt part as follows:
The court shall . . . on the motion of a party dismiss any action brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prisоn, or other correctional facility if the court is satisfied that the action . . . fails to state a claim upon which relief can be granted.
We think that the most natural reading of this language is that it simply restates the proposition that is implicit in Rule 12(b)(6), i.e., if a claim is based on facts that provide no basis for the granting of relief by the court, the claim must be dismissed. We acknowledge that the words of the statute do not foreclose the following, more expansive reading: if a complaint fails to state a claim for any reason, including a pleading error that could be cured by amendment, the court “shall . . . dismiss” forthwith and without permitting a curativе amendment. But we believe that this reading is more strained and would produce results that we doubt Congress wanted. If “shall . . . dismiss” were interpreted to mean “shall dismiss forthwith and without permitting a curative amendment,” it would seem that a court would be required to grant a motion to dismiss a technically defective claim even if a request for leave to amend to cure the defect were pending. We doubt that Congress wanted to require such а harsh, and seemingly pointless, result. We are also hesitant to conclude that Congress meant to change established procedures without a clearer indication than we have here.
We are not аware of anything in the legislative history of the PLRA that weighs significantly against the conclusion that we reach. There is no doubt that the provisions of the PLRA on which the defendants rely were meant to curb the substantively meritless prisoner claims that have swamped the federal courts. See, e.g., 141 Cong. Rec. S7526 (remarks of Sen. Kyl). But we are not aware of any specific support in the legislative history for the proposition that Congress also wanted the courts to dismiss claims that may have substantive merit but were inartfully pled.
In sum, we hold that, under the circumstances presented here, a District Court must continue to follow the procedures mandated by our pre-PLRA cases. We note that the result we reach is consistent with decisions of the Second, Ninth, and Tenth Circuits. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc); Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999); Perkins v. Kansas Dep‘t of Corrections, 165 F.3d 803, 806 (10th Cir. 1999).3 But see Benson v. O‘Brian, 179 F.3d 1014, 1016 (6th Cir. 1999). Unlike those circuits, however, we limit our holding to the dismissal on motion of a complaint in a non-in-forma-pauperis case.
III.
The District Court in this case dismissed the plaintiffs’ claims with prejudice and without leave to amend. In doing so, the court may have understandably thought that this procedure was mandated by the PLRA. We hold, however, that it is not and that now, as before, in the situation presented here, dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility. The District Court did not test the plaintiffs’ various claims against this standard, and we therefore vacate the order dismissing those claims and remand for the District Court to rule in the first instance on whether this standard is met.
A True Copy: Teste:
Clerk of the United States Court of Appeals for the Third Circuit