                 Not For Publication in West's Federal Reporter
                Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                         For the First Circuit


No. 03-1591

                              JOHN GRIFFITHS,

                          Plaintiff, Appellant,

                                       v.

                                    AMTRAK,

                          Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Rya W. Zobel, U.S. District Judge]


                                    Before

                         Selya, Lynch and Lipez,
                             Circuit Judges.



    James J. Fusillo on brief for appellant.



                               August 6, 2004
       Per Curiam. In this retaliatory discharge case, the pro se

plaintiff appeals from the district court's sua sponte dismissal of

his complaint for lack of subject matter jurisdiction.                      We vacate

the judgment and remand the case to the district court for further

proceedings.

                                     BACKGROUND

       Plaintiff filed a hand-written complaint alleging, in essence,

that defendant Amtrak discharged him in retaliation for complaining

to the department of transportation about an unsafe crossing gate.

In his complaint, plaintiff alleged that the district court had

jurisdiction under 28 U.S.C. § 1332 (diversity jurisdiction) but

also     alleged     that    both    he   and    Amtrak     are   "residents"     of

Massachusetts.

        In   reviewing      the   complaint      in   the   course     of   allowing

plaintiff's application to proceed in forma pauperis, the district

court determined, sua sponte, that "there is no diversity of

citizenship, and the Complaint discloses no other basis for the

exercise of federal jurisdiction."                For that reason, the court

dismissed      the    case    "without      prejudice"      and   directed      that

"[j]udgment may be entered accordingly."                Id.   The same day, the

clerk    entered     judgment       dismissing    the     complaint,    but    "with

prejudice."     This appeal followed.           Br. Add. 3.




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                                     DISCUSSION

     As we have previously warned, "[c]ourts must move cautiously

when dismissing a complaint sua sponte." Clorox Co. Puerto Rico v.

Proctor & Gamble Commercial Co., 228 F.3d 24, 30 (1st Cir. 2000).

Although "a district court may, in appropriate circumstances, note

the inadequacy of the complaint and, on its own initiative, dismiss

the complaint, . . . a court may not do so without at least giving

plaintiffs notice of the proposed action and affording them an

opportunity to address the issue."             Literature, Inc. v. Quinn, 482

F.2d 372, 374 (1st Cir. 1973) (dicta).                  While this rule has

exceptions, none is applicable here.

     Although district courts are required to dismiss an action

"[w]henever it appears by suggestion of the parties or otherwise

that the court lacks jurisdiction of the subject matter," Fed. R.

Civ. P. 12(h)(3), "[d]efective allegations of jurisdiction may be

amended," 28 U.S.C. § 1653; and such amendments may be made without

leave of court, where, as here, no responsive pleading has been

filed.    Fed.      R.   Civ.   P.    15(a).      By   dismissing   plaintiff's

complaint, sua sponte, without giving him prior notice of the

defect   in   his    jurisdictional      allegation,      the   district   court

deprived the plaintiff of his right to amend the complaint to cure

the defect.      The clerk then compounded the problem by entering

judgment with prejudice--rather than without prejudice as the court

directed and as is appropriate for dismissals on jurisdictional


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grounds, 2 Moore's Fed. Prac. 3d § 12.30[2] at 12-36--thereby

precluding plaintiff from correcting his error by filing a new

action.

     Nor does plaintiff's in forma pauperis status afford a basis

for this dismissal.   Sua sponte dismissals of in forma pauperis

complaints are authorized only where "the court determines that

. . . the action . . . (i) is frivolous or malicious; (ii) fails to

state a claim on which relief may be granted; or (iii) seeks

monetary relief   against   a   defendant   who   is   immune   from   such

relief."   28 U.S.C. 1915(e)(2)(B).     None of those determinations

was made here, nor does it appear that any such determinations

would have been warranted on the face of the complaint.                 See

Fredyma v. A T & T Network Sys., Inc., 935 F.2d 368, 368 (1st Cir.

1991) (per curiam) (explaining that, under § 1915(e), "a sua sponte

dismissal without notice . . . is appropriate only if a claim is

premised upon 'an indisputably meritless legal theory' or 'factual

allegations [that] are clearly baseless.'") (citing Neitzke v.

Williams, 490 U.S. 319, 325, 327 (1989)).

     Accordingly, the judgment of dismissal is vacated and the case

is remanded to the district court for further proceedings.




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