with whom LAVENDER, J., joins dissenting.
1 I respectfully dissent. I agree that the need to preserve internal order and discipline and to maintain institutional security necessitates an enhanced showing by a prisoner who seeks to recover damages for the use of excessive foree. I dissent because the majority opinion deprives plaintiff of any semblance of procedural due process.
2 Plaintiff is a state prisoner. He sued twelve prison guards seeking to hold them personally liable for their alleged use of excessive force. The guards moved to dismiss based on a variety of grounds. The trial court summarily dismissed the petition one day after the defendants filed their motion, without allowing plaintiff an opportunity to respond to the guards' motion and without a hearing. The trial court subsequently denied plaintiff's motion for rehearing/motion for new trial. The Court of Civil Appeals affirmed. Plaintiff sought certiorari.
13 In his petition for certiorari, plaintiff asks that he be allowed to respond to the individual defendants' motion to dismiss. He contends the trial court and the Court of Civil Appeals misapprehended the nature of his claim. He points out that he is suing the guards individually for their alleged use of excessive force occurring outside the scope of their employment. He emphasizes that he is not suing the state and therefore the Oklahoma Governmental Tort Claims Act is not applicable.
14 We accepted certiorari. The majority opinion acknowledges that plaintiff has a potential claim for the use of excessive force by the individual defendants. Nevertheless, the majority concludes that plaintiff failed to state a claim for excessive force because he did not allege sufficient facts in his petition. The majority reaches this conclusion despite the fact defendants had not filed a motion to dismiss on that basis (1.e., for failure to state a claim).1
*1043T5 I cannot accede to the majority opinion's conclusion for two reasons. First, the trial court deprived plaintiff of an opportunity to respond to defendants' motion to dismiss. This court has emphatically stated that a party is entitled to respond to a motion to dismiss unless all of the claims appear to be frivolous or without merit on their face. Washington v. State, 1996 OK 189, 915 P.2d 859. Here, there is no suggestion in the majority opinion that plaintiff's claim for excessive force is frivolous or without merit. On the contrary, the majority opinion actually identifies plaintiff's claim as raising a first impression issue in Oklahoma. Under Washington, supra, we should reverse the trial court and remand with directions to allow plaintiff to respond to the defendants' motion to dismiss.
T6 Second, the majority opinion's analysis is a throwback to pre-1984 pleading under which cases were disposed of on the basis of claims and defenses revealed in the pleadings.2 With the adoption of the Oklahoma Pleading Code in 1984, Oklahoma became a notice pleading state. 12 0.8.2001 § 2008(a)(1). Notice pleading narrows the function of the petition to that of giving "fair notice of the plaintiff's claim and the grounds upon which it rests." Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, 913 P.2d 1318, 1320. In this case, plaintiff's petition undeniably gave the majority sufficient notice to identify plaintiff's claim as one for excessive force; surely, then, the petition likewise gave sufficient notice to defendants.
17 Having given sufficient notice in his petition, plaintiff is entitled to have his claim proceed on the merits. If the claim is without foundation, this failing should be revealed early in the course of the proceedings. In rejecting the practice of deciding cases on the pleadings, the Committee Comment to § 2008 points out that "modern devices such as discovery, pre-trial conferences and summary judgments are more effective methods of performing the function of disclosing the factual and legal issues in dispute ... and disposing of frivolous or unfounded claims. ..." 12 0.8.2001 § 2008.
T8 Finally, the majority opinion cites four federal court cases to support its conclusion that plaintiff's petition fails to state a claim. However, all four of the cases determined that the prisoners' claims were without foundation during the normal course of the trial process, not on the pleadings alone. See LaShpella v. C.E.R.T. Team, 989 F.2d 505, 1993 WL 87000 (8th Cir.1993) (unpublished decision) (findings of fact and conclusions of law after non-jury trial); Jackson v. Carl, 974 F.2d 1342, 1992 WL 212168 (Oth Cir.1992) (unpublished decision) (summary judgment); Bennett v. Cambra, 1997 WL 88829 (N.D.Cal.1997) (unpublished decision) (summary judgment); Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (directed verdict).
19 In sum, we should reverse the trial court's judgment and remand with directions to allow plaintiff to respond to defendants' motion to dismiss.
. In reviewing a dismissal motion we must take all of plaintiff's allegations as true. Patel v. OMH Medical Center, Inc., 1999 OK 33, 987 P.2d 1185, 1202. Plaintiff's allegations include the following. Officer Pogue approached plaintiff's cell and told him to "cuff up" because Pogue was going to put another inmate in the cell. Plaintiff refused, saying he would not take a cell partner while he was in the Disciplinary Segregation Unit. The next evening the Emergency Response Team placed another inmate in plaintiff's cell. Plaintiff refused to "give up the handcuffs and leg restraints" that had been placed on him. He was "allowed to sleep in the restraints overnight." The next evening eight members of the Emergency Response Team went into plaintiff's cell and "forcefully" removed his restraints. Plaintiff was sitting on the floor when the first officer entered the cell and told him to "lay down on the floor." The officer then "came down on plaintiff with his full weight, causing plaintiff's head to crash onto the floor rendering plaintiff temporarily unconscious." Plaintiff regained consciousness after a series of blows to his face and head. Another officer had his knee on the back of plaintiff's neck, striking him in the head, and the officers "continued to punch plaintiff for *1043some time" until Officer Sockey yelled: "Alright. That's enough, put him on the bunk." The officers removed plaintiff's restraints. A nurse on the scene found plaintiff had "a cut over his right eye ... and the eye was swelled and red." As a result of the officers' conduct, plaintiff has bouts of dizziness, severe neck and back pain and blurred vision in his right eye.
. -When we adopted the Oklahoma Pleading Code we expressly declined to adopt Rule 12(c) of the Federal Rules of Civil Procedure which allows for judgment on the pleadings. The Committee Comment to § 2012 notes that Rule 12(c) "is little more than a relic of the common law and code eras. Its preservation in the original federal rules undoubtedly was due to the undeveloped character of the summary judgment procedure and the uncertain scope of the Rule 12(b)(6) motion [to dismiss]. Neither of these rationales [is] relevant today." 12 0.$.2001 § 2012.