                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 19 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MARVIN BROWN,

                Plaintiff-Appellant,

    v.                                                    No. 97-2044
                                                   (D.C. No. CIV-96-968-JC)
    NEW MEXICO DISTRICT COURT                              (D. N.M.)
    CLERKS; VICKI AKENHEAD,
    Managing Reporter; ANNETTE G.
    ARAGON; and VIOLA W. LEWIS,
    Official Court Reporters,

                Defendants-Appellees.




                            ORDER AND JUDGMENT *



Before BALDOCK, EBEL, and MURPHY, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff Marvin Brown, a prisoner proceeding pro se, appeals the district

court’s sua sponte dismissal of his complaint under 28 U.S.C. § 1915(e)(2) and

Fed. R. Civ. P. 12(b)(6), with prejudice, for failure to state a claim. Plaintiff’s

complaint contends that he needed certain transcripts of an August 1992 hearing

in his criminal action in order to file a habeas petition. He contends he requested

these transcripts from the defendant court reporters, who first told him there was

no hearing on that date, but ultimately located and sent him the transcripts of the

hearing. He alleged that when he received the transcripts, they did not accurately

reflect all of the conversations during the hearing. Plaintiff asserted that the court

reporters purposely left out portions of the proceedings, allegedly to protect the

judge from “incriminating actions” taken during the hearing.

      The district court dismissed plaintiff’s complaint sua sponte, prior to

service upon the defendants. Applying the rule of liberal construction for pro se

actions, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), the district court

construed plaintiff’s complaint as an action under 42 U.S.C. § 1983. The district

court stated that plaintiff failed to allege that a federal right was violated or that

any such deprivation was caused by a person acting “under color of state law.”

The district court concluded that plaintiff failed to state a claim upon which relief


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could be granted and dismissed plaintiff’s complaint under § 1915(e)(2) and

Rule 12(b)(6) with prejudice.

      On appeal, plaintiff contends the district court erred in dismissing his

complaint without first giving him an opportunity to cure any defects in his

complaint. We review a Rule 12(b)(6) dismissal de novo. See Chemical

Weapons Working Group, Inc. v. United States Dep’t of the Army, 111 F.3d

1485, 1490 (10th Cir. 1997). We have not yet determined whether dismissal for

failure to state a claim pursuant to § 1915(e)(2)(B)(ii) is reviewed for abuse of

discretion, see Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997) (applying

abuse of discretion standard to review a dismissal under § 1915(d), the precursor

to § 1915(e)(2)), or de novo, similar to the same standard as a Rule 12(b)(6)

“failure to state a claim.” Because the district court’s decision was based on

failure to state a claim, rather than frivolousness, and relied on both § 1915 and

Rule 12(b)(6), we will apply the Rule 12(b)(6) de novo standard in this case.

Cf. McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997) (concluding

dismissals under new § 1915(e)(2) and 28 U.S.C. § 1915A should be reviewed

de novo).

      Plaintiff’s complaint did not reveal the nature of the hearing in question,

what was allegedly omitted from the transcripts, why the omission is necessary

to decide his habeas petition or how the alleged omissions or inaccuracies in his


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transcript adversely affected him. Further, although the district court liberally

construed the complaint as seeking relief under § 1983, plaintiff failed to allege

any violation of a constitutional or other right or to specify any cause of action.

Nevertheless, although we have held that a district court may dismiss sua sponte

a pro se complaint for failure to state a claim, see McKinney v. Oklahoma,

925 F.2d 363, 365 (10th Cir. 1991), we have also held that “[s]uch a dismissal is

appropriate only where it is patently obvious that the plaintiff could not prevail

on the facts alleged, and allowing [him] an opportunity to amend [his] complaint

would be futile.” Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997)

(quotations omitted); McKinney, 925 F.2d at 365.

      Here, we cannot conclude that it is patently obvious that plaintiff could not

prevail on the facts alleged and allowing him an opportunity to amend his

complaint would be futile. See Forte v. Sullivan, 935 F.2d 1, 3 (1st Cir. 1991)

(holding that civil rights claim that court reporter altered trial transcript was not

“indisputably meritless” and should not have been dismissed under § 1915

without giving plaintiff notice and an opportunity to amend his complaint). Some

courts have recognized § 1983 claims based on allegations that a court reporter

altered criminal trial transcripts. See id. at 3 (claim not “indisputably meritless”);

Curro v. Watson, 884 F. Supp. 708, 719, 724 (E.D.N.Y. 1995) (recognizing

§ 1983 due process claim to reasonably accurate criminal trial transcript based


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on allegation that court reporters deliberately altered transcripts, but dismissing

on qualified immunity grounds), aff’d, No. 95-2327, 1996 WL 19172, at **1

(2d Cir. Jan. 16, 1996) (unpublished disposition); Odom v. Wilson, 517 F. Supp.

474, 476 (S.D. Ohio 1981) (allegation that court reporter who deliberately

watered-down charge to jury states cognizable § 1983 claim); see also Antoine v.

Byers & Anderson, Inc., 508 U.S. 429, 436-37 (1993) (holding that court

reporters are not absolutely immune from damages liability); McCullough v.

Horton, 69 F.3d 918, 919 (8th Cir. 1995) (holding it was abuse of discretion

to dismiss as frivolous claim that court reporter failed to provide inmate with

transcript of his criminal trial); Gagan v. Norton, 35 F.3d 1473, 1476-77 (10th

Cir. 1994) (district court erred in denying leave to amend complaint to allege

§ 1983 claim that court reporters refused to prepare transcripts, holding that

qualified immunity is an affirmative defense that can only be raised after

defendants have been served).

      “[P]laintiff does not have a constitutional right to a totally accurate

transcript of his criminal trial.” Tedford v. Hepting, 990 F.2d 745, 747 (3d Cir.

1993). “His constitutional rights would be violated only if inaccuracies in the

transcript adversely affected the outcome of the criminal proceeding.” Id.;

see also Colyer v. Ryles, 827 F.2d 315, 316 (8th Cir. 1987) (civil complaint for

damages was frivolous where plaintiff was not prejudiced by allegedly altered


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transcript). 1 Plaintiff has not alleged facts indicating how the alleged

inaccuracies in his transcript prejudiced him. However, because “pro se litigants

are to be given reasonable opportunity to remedy the defects in their pleadings,”

Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991), the district court erred

in dismissing plaintiff’s complaint with prejudice, without first giving him an

opportunity to amend his complaint to cure any deficiencies. See Forte, 935 F.2d

at 2, 4 (holding that pro se prisoner plaintiff, who failed to indicate how alleged

transcript alterations prejudiced him, should have been granted leave to amend his

complaint against the court reporter so as to state claim); see also McKinney, 925

F.2d at 365 (“Under Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily

accorded notice of a pending motion to dismiss for failure to state a claim and an

opportunity to amend the complaint before the motion is ruled upon.”) (quoting

Neitzke v. Williams, 490 U.S. 319, 329 (1989)).

      Because it is not patently obvious that plaintiff’s complaint fails to allege

the violation of a federal right, the district court erred in dismissing it under



1
       Moreover, plaintiff’s right to a free transcript in order to file his habeas
petition is not unconditional. A petitioner seeking relief under 28 U.S.C. §§ 2254
or 2255 must first demonstrate that his claim is not frivolous and that the
transcript is needed to decide the issue presented by the suit before the court is
required to provide him with a free transcript. See United States v. MacCollom,
426 U.S. 317 (1976) (plurality) (interpreting a § 2255 petition and 28 U.S.C.
§ 753(f)); Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992) (applying the
MacCollom analysis to a § 2254 action).

                                          -6-
§ 1915(e)(2)(B)(ii) and Rule 12(b)(6). On remand, plaintiff should be afforded an

opportunity to amend his complaint to cure any deficiencies.

      Accordingly, we VACATE and REMAND the action to the district court

for further proceedings. The mandate shall issue forthwith.



                                                  Entered for the Court



                                                  David M. Ebel
                                                  Circuit Judge




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