Prisoner appeals pro se from judgment of the United States District Court for the Northern District of New York Neal P. McCurn, J., dismissing sua sponte and without service of process his pro se complaint under 42 U.S.C. § 1983. Dismissal held premature; remanded for service of process and further proceedings.
FEINBERG, Chief Judge, CARDAMONE and DAVIS,*fn* Circuit Judges.
Victor Bayron, a prisoner at Clinton Correctional Facility, appeals pro se from a judgment of the United States District Court for the Northern District of New York dismissing sua sponte and without service of process Bayron's complaint under 42 U.S.C. § 1983. Because the dismissal of the complaint was premature, the judgment of the district court is vacated and the case is remanded for the service of process and further proceedings.
In April 1981, Bayron filed a complaint in the Northern District against defendants Correctional Officer Trudeau and Correctional Counselor Petrushun in their individual and official capacities. The complaint, set forth on a form that the Northern District clerk's office supplies to prisoners, covered seven pages. Bayron alleged, among other things, that during a search of his cell, the named officers in his presence either destroyed or took without ever returning certain books, medication and other personal items, and intentionally damaged other personal belongings. The complaint also alleged that one of the officers read through Bayron's legal papers, and that Officer Petrushun filed an intentionally false misbehavior report against him. The last action allegedly resulted in unwarranted and arbitrary disciplinary action by the Adjustment Committee, including "false imprisonment" for seven days and lost privileges for 23 days. Bayron sought declaratory and injunctive relief against the officers as well as compensatory and punitive damages.
The district judge referred the complaint to Magistrate Edward M. Conan. In April 1982, the magistrate granted Bayron in forma pauperis status and ordered the complaint to be filed without payment of fees. At the same time, in a three-page "Report-Recommendation," the magistrate recommended that the complaint be dismissed. Despite the allegations in the complaint regarding the cell search, property seizure and destruction and reading of Bayron's legal papers, the magistrate interpreted Bayron's complaint as only seeking "relief from what he claims was an unfavorable Adjustment Committee result." The magistrate concluded that since in this regard Bayron did not allege any specific constitutional deprivation, such as lack of a hearing, he did not state a cause of action under § 1983.
In June 1982, the district judge approved the magistrate's "Report-Recommendation," and dismissed Bayron's complaint sua sponte. Up to this point, there had been no service of process upon defendants and, of course, no appearance by or response from them. A copy of the judge's order of dismissal was, however, apparently sent to the Attorney General of New York State. It is not clear from the record whether the Attorney General had also received earlier a copy of the magistrate's "Report-Recommendation."
In any event, Bayron filed a timely notice of appeal and, subsequently, a brief and appendix in this court. The appendix consisted of a copy of the docket entries in the district court and a copy of the magistrate's Order and Report-Recommendation. Thereafter, the Attorney General wrote the clerk of this court a short letter, the key paragraph of which was:
This office has no record that defendants were ever served with the complaint, nor does the Record on Appeal contain any Marshall's affidavit of service. Defendants decline to waive their right to service of the complaint and will not defend this appeal (Lewis v. State of New York, 547 F.2d 4 [2d Cir, 1976]).
The appeal in due course came before this panel and was taken on submission upon the record as set forth above.
This court has only recently reaffirmed the principle that sua sponta dismissal of a pro se prisoner petition before service of process and the filing of a response by the state is strongly disfavored. See Moorish Science Temple of America, Inc. and Bro. R. Smallwood-El v. Smith, 693 F.2d 987 (2d Cir. 1982), and the cases there cited. Dismissal of a prisoner's pro se complaint is warranted only when it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Moreover, the complaint must be liberally construed, Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), and the allegations taken as true, Cooper v. Pate, 378 U.S. 546, 12 L. Ed. 2d 1030, 84 S. Ct. 1733 (1964).
With these principles in mind, it is clear that the district court acted prematurely. Putting to one side whether Bayron failed to allege any specific constitutional deprivations with regard to the disciplinary hearings,*fn1 the district court erred in dismissing on the record before it Bayron's allegations concerning intentional deprivation of property and reading of his legal papers. The magistrate concluded that these allegations were "not operative" merely because plaintiff did not repeat them in the last portion of his complaint labelled "Statement of Claim." However, the earlier allegations appeared under a printed heading on the form supplied to plaintiff that was also entitled "Statement of Claim." In addition, these allegations were recounted in great detail and at some length. The magistrate and the district judge gave much too technical a reading to a pro se prisoner's complaint, particularly when the "nonoperative" allegations do make out a claim under § 1983. There are numerous cases holding that similar allegations regarding intentional confiscation or destruction of a prisoner's property without justification or explanation state a § 1983 claim.*fn2 And there are also cases protecting a prisoner's right to access to the courts and to privacy in legal ...