15-3357-cv
Shariff v. United States

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a
summary order filed on or after January 1, 2007, is permitted and is
governed by Federal Rule of Appellate Procedure 32.1 and this Court’s
Local Rule 32.1.1. When citing a summary order in a document filed with
this Court, a party must cite either the Federal Appendix or an electronic
database (with the notation “Summary Order”). A party citing a summary
order must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the day of 26th of April, two thousand and seventeen.

Present:
                  PETER W. HALL,
                  DENNY CHIN,
                            Circuit Judges,
                  LASHANN DEARCY HALL,*
                            District Judge.


ABBAS SHARIFF,

                          Plaintiff-Appellant,

                  v.                                                            15-3357-cv

UNITED STATES,

                          Defendant-Appellee.†


For Appellant:                   ANJALI S. DALAL (Robert Loeb, Washington D.C., Brian P
                                 Goldman, San Francisco, CA, on the brief), Orrick,
                                 Herrington & Sutcliffe LLP, New York, New York.

* Judge LaShann DeArcy Hall, United States District Court for the Eastern District of New York,
sitting by designation.

†   The Clerk is respectfully directed to amend the caption to conform with the above.

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Shariff v. United States


For Appellees:              CATHERINE H. DORSEY (Benjamin C. Mizer, Principal
                            Deputy Assistant Attorney General, Barbara L. Herwig,
                            on the brief), United States Department of Justice,
                            Washington, D.C.


      Appeal from an order of the United States District Court for the Western

District of New York (Skretny, J.).

      UPON       DUE       CONSIDERATION,        IT   IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the order is VACATED, and the case is

REMANDED for further proceedings not inconsistent with this order.

      Plaintiff-Appellant Abbas Shariff appeals from the district court’s sua sponte

dismissal of his amended complaint pursuant to 28 U.S.C. § 1915(e). Shariff first

argues that the district court erred by dismissing his complaint with prejudice for

failure to conform the caption with the requirements of Federal Rule of Civil

Procedure 10. Second, Shariff contends that the district court (and this Court via a

motions panel) erred by dismissing his tort claims with prejudice for failure to

exhaust administrative remedies. We assume the parties’ familiarity with the

underlying facts, the procedural history, the district court’s rulings, and the

arguments presented on appeal.

      We review de novo a district court’s sua sponte dismissal of a pro se

complaint. Giano v. Goord, 250 F.3d 146, 149–50 (2d Cir. 2001). We conclude that

the district court erred in dismissing Shariff’s complaint based on infirmities in the

caption.



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Shariff v. United States

        Federal Rule of Civil Procedure 10(a) provides: “Every pleading must have a

caption . . . [and] [t]he title of the complaint must name all the parties.” Rule 10 is,

of course, subject to the command “never to exalt form over substance.” Phillips v.

Girdich, 408 F.3d 124, 128 (2d Cir. 2005). Indeed, we “excuse technical pleading

irregularities as long as they neither undermine the purpose of notice pleading nor

prejudice the adverse party.” Id.

        Pro se pleadings, like Shariff’s amended complaint here, warrant especially

liberal construction and should not be dismissed unless “it is clear that the plaintiff

would not be entitled to relief under any set of facts that could be proved consistent

with the allegations.” Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). Casting

a “lenient eye” on pro se pleadings, Fleming v. United States, 146 F.3d 88, 90 (2d

Cir. 1998) (per curiam), and heeding our admonition that it is “entirely contrary to

the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be

avoided on the basis of . . . mere technicalities,” United States v. Schwimmer, 968

F.2d 1570, 1575 (2d Cir. 1992), we are compelled to vacate the district court’s order

here.

        Upon dismissing Shariff’s original complaint without prejudice, the district

court rightly instructed him that he must identify in the caption the people he

intended to sue. Because it appears that Shariff made a good faith effort to do just

that when he bolded a list of names and inserted it at the bottom of the amended

complaint, our flexible construction of pro se pleadings leads us to conclude that




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Shariff v. United States

Shariff must be given further opportunity to conform the caption with Rule 10’s

requirements.

      Shariff also argues that the motions panel erred by summarily affirming the

dismissal of his tort claims with prejudice for failure to exhaust administrative

remedies. Shariff acknowledges that he failed to exhaust those remedies and that

that failure is jurisdictional. Celestine v. Mount Vernon Neighborhood Health Ctr.,

403 F.3d 76, 82 (2d Cir. 2005). We recognize, however, that “[f]ailure to exhaust

administrative remedies is often a temporary, curable procedural flaw[,]” Snider v.

Melindez, 199 F.3d 108, 111 (2d Cir. 1999), and that Shariff was pro se below. For

that reason, we also vacate the district court’s dismissal with prejudice of the tort

claims. On remand, the district court should dismiss them without prejudice, thus

permitting Shariff to make any appropriate equitable tolling argument he chooses

to advance. To the extent that the motions panel order of January 7, 2016 conflicts

with this order, it is vacated.

      Accordingly, the district court’s order is VACATED, and the case is

REMANDED for further proceedings not inconsistent with this order.


                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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