                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2000

Shane v. Fauver
Precedential or Non-Precedential:

Docket 98-6205




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Recommended Citation
"Shane v. Fauver" (2000). 2000 Decisions. Paper 104.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/104


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Filed May 19, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-6205

STANFORD SHANE; OTIS TERRELL;
ROBERT STEWART,
       Appellants

v.

WILLIAM FAUVER, Commissioner;
JAMES BARBO, Administrator;
ROGERS, Chief; DIRECTOR OF CUSTODY

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

Before: ALITO and STAPLETON, Circuit Judges, and
FEIKENS,* Senior District Judge.

(Filed: May 19, 2000)



_________________________________________________________________
*The Honorable John Feikens, United States District Court for the
Eastern District of Michigan, sitting by designation.
       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
        Attorney 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

OPINION OF THE COURT

ALITO, Circuit Judge:

Stanford Shane, Otis Terrell, and Robert Stewart,
prisoners at New Jersey's Northern State Prison, appeal the
dismissal of their complaint under 42 U.S.C. S 1983
without leave to amend. We hold that, under the
circumstances present here, Section 803(d) of the Prison
Litigation Reform Act ("PLRA"), 42 U.S.C.S 1997e(c)(1), did
not change the procedures that our court previously
adopted regarding the dismissal of a complaint without
granting leave to amend. We therefore vacate the order of
dismissal and remand for further proceedings.

I.

The plaintiffs' complaint 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 Fed. R. Civ. P. 12(b)(6) for failure to

                                  2
state a claim upon which relief may be granted. The
plaintiffs responded, and the District Court entered an
order granting the motion and dismissing the complaint.
Because the order did not specify that the dismissal was
without prejudice, under Fed. R. Civ. P. 41(b) the dismissal
"operates as an adjudication upon the merits." The
plaintiffs appealed.

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 appeal 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 Federal 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." Fed. R. Civ. P.
12(b). Thus, in the typical case in which a defendant
asserts the defense of failure to state a claim by motion, the
plaintiff may amend the complaint once "as a matter of
course" without leave of court. See 2 James Wm. Moore et
al., Moore's Federal Practice S 12.34[5], at 12-76 (3d ed.
1999) (quoting Fed. R. Civ. P. 15(a)). After amending once
or after an answer has been filed, the plaintiff may amend
only with leave of court or the written consent of the
opposing party, but "leave shall be freely given when justice
so requires." Fed. R. Civ. P. 15(a). The Supreme Court has

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instructed that although "the grant or denial of an
opportunity to amend is within the discretion of the District
Court, . . . outright refusal to grant the leave without any
justifying reason appearing for the denial is not an exercise
of discretion; it is merely an abuse of that discretion and
inconsistent with the spirit of the Federal Rules." Foman v.
Davis, 371 U.S. 178, 182 (1962).

"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" means 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 forthcoming 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:

                               4
       [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.

Darr, 767 F.2d at 81.

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 case, 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 enactment 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
_________________________________________________________________

1. See District Council 47, 795 F.2d at 317 (Aldisert, J., dissenting).

2. Section 805(a) of the PLRA requires a District Court to "screen"
prisoner complaints "before docketing, if feasible or, in any event, as
soon as practicable after docketing," and provides that the Court "shall
. . . dismiss" any portion of a complaint that, among other things, "fails
to state a claim upon which relief may be granted." 28 U.S.C. S 1915A(a)-
(b). This provision does not apply to the present case because the
complaint was not dismissed pursuant to court "screening" but on
motion by the defendants.

Section 804(a)(5) of the PLRA provides that in an in forma pauperis
case, "the court shall dismiss the case at any time if the court
determines that . . . the action . . . fails to state a claim on which
relief
may be granted." 28 U.S.C. S 1915(e)(2) (emphasis added). This is not an
in forma pauperis case.

                               5
not proceed in forma pauperis 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 on 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
pertinent 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, prison, or other
       correctional facility if the court is satisfied that the
       action . . . fails to state a claim upon which relief can be
       granted.

42 U.S.C. S 1997e(c)(1) (emphasis added).

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 curative 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 a 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 aware of anything in the legislative history of
the PLRA that weighs significantly against the conclusion

                                6
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.
_________________________________________________________________

3. See also Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C. Cir.
1998) (dictum); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)
(dictum).

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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