19-1014-pr
Baxter v. Wagner


                                  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 23rd day of April, two thousand twenty.

PRESENT:             BARRINGTON D. PARKER,
                     DENNY CHIN,
                     WILLIAM J. NARDINI,
                                         Circuit Judges.
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JASON I. BAXTER,
                                        Plaintiff-Appellant,

                              -v-                                                      19-1014-pr

BART E. WAGNER,
                                        Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:                                     TATIANA LAING and LEVI KLINGER-
                                                             CHRISTIANSEN, Law Students, supervised by
                                                             Jonathan Romberg, Esq., for the Center for
                                                             Social Justice, Seton Hall University School of
                                                             Law, Newark, New Jersey.
FOR DEFENDANT-APPELLEE:                   No appearance.

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

New York (Larimer, J.).

              UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED, and the case is

REMANDED for further proceedings consistent with this order.

              Plaintiff-appellant Jason I. Baxter, an inmate at Southport Correctional

Facility ("Southport"), appeals from a judgment entered by the district court on March

22, 2019, sua sponte dismissing his pro se complaint (the "Complaint") with prejudice. By

order dated the same day, the district court found that the Complaint -- filed under 42

U.S.C. § 1983 against defendant-appellee Bart E. Wagner, a corrections captain at

Southport -- failed to state a claim on which relief could be granted and dismissed it

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(a). We assume the parties'

familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

              Broadly, the Complaint alleges that Wagner violated Baxter's

constitutional rights by denying him the ability to make telephone calls at Southport.

Specifically, Baxter raises First and Fourteenth Amendment claims, alleging that

Wagner retaliated against him for filing grievances by denying him access to the prison

phone and thereby treated him differently from other similarly situated inmates. Read


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liberally because it was filed pro se, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), the

Complaint also alleges that Baxter's First Amendment right to access the courts and

Fourteenth Amendment right to due process were violated. After granting Baxter's

motion to proceed in forma pauperis, the district court sua sponte dismissed the case with

prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(a) on the grounds that

Baxter failed to state a claim on which relief could be granted. On appeal, Baxter, now

represented by counsel, asks that we reverse the district court's sua sponte dismissal or,

alternatively, vacate the judgment with instructions to the district court to grant him an

opportunity to amend the Complaint.

              "We review de novo a district court's sua sponte dismissal of an in forma

pauperis complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)." Fowlkes v. Ironworkers Local 40,

790 F.3d 378, 384 n.8 (2d Cir. 2015). Although the district court must dismiss a case if

the action "fails to state a claim on which relief may be granted," 28 U.S.C.

§ 1915(e)(2)(B)(ii), sua sponte dismissal of a § 1983 claim is inappropriate if the

complaint alleges that "(1) the defendant was a state actor . . . when he committed the

violation and (2) the defendant deprived the plaintiff of rights, privileges or immunities

secured by the Constitution or laws of the United States." Milan v. Wertheimer, 808 F.3d

961, 964 (2d Cir. 2015) (internal quotation marks omitted). On review, we "accept as

true all facts described in the complaint," id. at 963, and interpret a pro se litigant's

submissions "to raise the strongest arguments that they suggest," Triestman v. Fed.


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Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks omitted).

Finally, we review a district court's denial of leave to amend a complaint for abuse of

discretion. See Chavis v. Chappius, 618 F.3d 162, 167 (2d Cir. 2010). "A pro se complaint

should not be dismissed without the Court granting leave to amend at least once when

a liberal reading of the complaint gives any indication that a valid claim might be

stated." Id. at 170 (internal quotation marks and alterations omitted).

              Here, the district court sua sponte dismissed the Complaint with prejudice

after considering Baxter's due process and retaliation claims. It did not, however,

address Baxter's First Amendment claims that he was denied access to the courts and

deprived of his right to make a phone call, 1 or his Equal Protection claim that he was

treated differently from other similarly situated inmates. While we do not consider the

viability of these claims, it is difficult to imagine that the "draconian device" of sua

sponte dismissal, Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) (internal quotation

marks omitted), was appropriate here, particularly considering that the court did not

address all of Baxter's claims. In any event, we conclude that the district court abused




1     This Court has not addressed whether a prisoner has a First Amendment right to
make phone calls, but at least one Circuit has held they do in at least some
circumstances. See Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000).

       Additionally, it is unclear from Baxter's complaint whether he alleges that he was
denied access to the telephone entirely or whether he was denied additional telephone
access after receiving the fifteen-minute access period to which he was entitled under
Southport's regulations.
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its discretion when it denied Baxter an opportunity to file an amended complaint by

dismissing his Complaint with prejudice. Accordingly, we conclude that Baxter must

be offered the opportunity to amend the Complaint to further develop his claims. 2

                                             * * *

              For the foregoing reasons, we VACATE the judgment below

and REMAND to the district court so that Baxter may be provided the opportunity to

amend the Complaint.

                                            FOR THE COURT:
                                            Catherine O'Hagan Wolfe, Clerk




2       On remand, the district court may wish to appoint pro bono counsel to assist Baxter in
filing an amended complaint.

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