dissenting:
Bound and determined to label another prisoner complaint as “frivolous,” the majority passes up a good chance for this circuit to adopt a sensible rule that would require notice and an opportunity to respond prior to a sua sponte dismissal on the merits. To avoid a remand, the majority first transforms the district judge’s dismissal on the merits into a dismissal under § 1915(d). Then, alternatively, the majority applies § 1915(d) in the first instance, ignoring the Supreme Court’s instruction in Boag v. MacDougall, 454 U.S. 364, 365 n. *, 102 S.Ct. 700, 701 n. *, 70 L.Ed.2d 551 (1982), that § 1915(d) must be invoked first by the district court. The result does nothing to encourage precision in the district courts, and it will make more work for us in the long run. I, therefore, respectfully dissent.
I.
The majority’s effort to transform the December 2, 1993, dismissal order into one of the § 1915(d) variety has a fundamental flaw: it does not take the district judge at his word. When the words of the dismissal order are measured against the words of Fed. R.Civ.P. 12(b)(6) and § 1915(d), it becomes clear that the district judge dismissed Cochran’s complaint on two grounds: res judicata and failure to state a claim. Section 1915(d) is not in the picture.
The dismissal order provides:
This case comes before the Court after having been transferred from the Western District of Virginia, Roanoke Division. Many of plaintiffs claims have been previously ruled on in this Court’s Order of July 7, 1993. The plaintiff now makes further complaints regarding the defendants, none of which states a claim for which relief can be granted, and this ease is DISMISSED.
The order’s plain language indicates that Cochran’s free exercise claim, which had been “previously ruled on” in the July 7, 1993, order, was dismissed on res judicata grounds. Cochran’s “further complaints” were dismissed because “none ... states a claim for which relief can be granted.” This language tracks Rule 12(b)(6) (“failure to state a claim upon which relief can be granted”) almost verbatim. Not only did the district judge track the language of Rule 12(b)(6), but he also avoided either a citation to § 1915(d) or the use of its rememberable language (court may dismiss ”if satisfied that the action is frivolous or malicious”).
The experienced district judge here has been steeped in in forma pauperis prisoner litigation. I expect, therefore, that he was aware of the guidelines for § 1915(d) dismissals. The Supreme Court has instructed district courts to provide a brief explanation when dismissing under § 1915(d) “to facilitate intelligent appellate review.” Boag, 454 U.S. at 365 n. *, 102 S.Ct. at 701 n. *. See also Denton v. Hernandez, 504 U.S. 25, 33-35, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992); Besecker v. Illinois, 14 F.3d 309, 310 (7th Cir.1994) (per curiam); Levoy v. Mills, 788 F.2d 1437, 1438 (10th Cir.1986); Sills v. Bureau of Prisons, 761 F.2d 792, 794 (D.C.Cir.1985). The brief explanation should include a reference to the statute or its standard for dismissal. Harris v. Johnson, 784 *1320F.2d 222, 224 (6th Cir.1986) (“[I]f a dismissal is to occur sua sponte under the limited exceptions provided by section 1915(d), the trial court must explicitly state that the statute is being invoked and that the complaint is being dismissed as frivolous.”).
The district judge’s failure to use the “frivolous” designation or even to cite § 1915(d) was deliberate, I believe, for one reason: he intended to dismiss on the merits, thereby blocking Cochran from filing a paid complaint later. “[A] § 1915(d) dismissal is not a dismissal on the merits, but rather an exercise of the court’s discretion under the in forma pauperis statute.” Denton, 504 U.S. at 34, 112 S.Ct. at 1734. “[T]he dismissal does not prejudice the filing of a paid complaint making the same allegations.” Id. See also Brown v. Briscoe, 998 F.2d 201, 204 (4th Cir.1993).
The district judge’s words — -dismissing Cochran’s second free exercise claim as “previously ruled on” and dismissing his “further complaints” because “none ... states a claim” — should be allowed to carry their usual consequence of a judgment on the merits. With his choice of language the judge surely did not intend to permit Cochran to refile a paid complaint asserting his free exercise claim a third time and his other claims a second time. Yet that would be quite possible under a § 1915(d) dismissal, the designation chosen by the majority.
It is best to give the judge’s order its most natural reading even if, as we see next, that would require a remand.
II.
Accepting the obvious, that the sua sponte dismissal was based on res judicata and failure to state a claim, does force a fundamental question. Is it proper to grant a sua sponte dismissal on the merits without notice and an opportunity to respond? I would hold that such a dismissal cannot be permitted.1
There are compelling reasons of fairness and efficiency for disallowing sua sponte dismissals on the merits entered without notice and an opportunity to respond. The Eighth Circuit has explained:
When unaccompanied by notice to the plaintiffs and an opportunity to respond, sua sponte dismissals deprive plaintiffs of the chance to develop legal arguments or clarify factual allegations, undercut the adversarial process, and render the appellate record less complete for review.
Murphy v. Lancaster, 960 F.2d 746, 748 (8th Cir.1992) (per curiam). For these reasons, a majority of the circuits that have addressed the question in the context of Rule 12(b)(6) dismissals have adopted per se rules prohibiting such dismissals. They enforce the prohibition by automatically vacating the dismissals and remanding for reconsideration on the merits after notice. See Thomas v. Scully, 943 F.2d 259, 260 (2d Cir.1991) (per curiam); Street v. Fair, 918 F.2d 269, 272 (1st Cir.1990) (per curiam); Roman v. Jeffes, 904 F.2d 192, 196 (3d Cir.1990); Ricketts v. Midwest Nat’l Bank, 874 F.2d 1177, 1183-85 (7th Cir.1989); Tingler v. Marshall, 716 F.2d 1109, 1110-12 (6th Cir.1983); Jefferson Fourteenth Assocs. v. Wometco de Puerto Rico, Inc., 695 F.2d 524, 526-27 (11th Cir.1983). Although these courts announced their rules in the context of Rule 12(b)(6) dismissals, their holdings embrace any dismissal on the merits, such as one on res judicata grounds. See also U.S. Dev. Corp. v. Peoples Fed. Sav. & Loan Ass’n, 873 F.2d 731, 736 (4th Cir. *13211989) (requiring notice and an opportunity to respond before a court may sua sponte grant summary judgment).2
This case powerfully illustrates the need for a prohibition against dismissals on the merits entered without notice and an opportunity to respond. Eleven days after his complaint was dismissed, Cochran filed a Rule 60(b) motion to vacate the judgment, asserting that (the newly-enacted) RFRA applied to his facts. The district court denied the Rule 60(b) motion, but because Cochran did not appeal that ruling, the majority does not reach his RFRA argument or the question of RFRA’s constitutionality. Unfortunately, court-appointed counsel for Cochran, counsel for the Commonwealth, counsel for the United States (as intervenor) and counsel for an amicus cwriae spent considerable public and private resources briefing and arguing the RFRA issue, first to a panel and then to the cn banc court. These resources and valuable court time were wasted on what counsel honestly believed was an issue in the case. This waste might have been avoided if the district judge had notified Cochran of his intention to dismiss and offered Cochran an opportunity to respond. Then Cochran could have advised the district court of his reliance on RFRA, and the judge could have ruled on his claims, taking RFRA into account. Under that scenario, the RFRA claim would be before us and we could dispose of it once for all. Surely no one doubts that Cochran’s RFRA claim must be dealt with eventually, and it would have been more efficient and far less costly to have decided it now.
Under the circumstances, I would vacate the judgment and remand this case with the instruction that the district judge reconsider his proposal to dismiss after Cochran has had the opportunity to respond.
III.
The majority must sense that it will be hard to sell the order as anything other than a dismissal on the merits. I say this because the majority feels compelled to hold that the dismissal may in any event be upheld on alternate grounds, that is, this court may in the first instance determine that Cochran’s claims are frivolous under § 1916(d). The Supreme Court does not allow § 1915(d) to be used in that way, however.
Whether a complaint is “frivolous” for purposes of § 1915(d) “must be addressed in the first instance by the District Court.” Boag, 454 U.S. at 365 n. *, 102 S.Ct. at 701 n. *. The reason for the Boag rule is simple: there cannot be true appellate review unless the district court has first exercised its discretion under § 1915(d). Here, the district judge did not enter a discretionary dismissal under § 1915(d), and this court cannot make the § 1915(d) determination in the first instance.3
*1322IV.
I am bothered by the lack of precision this opinion could encourage in the district courts. Nowhere does the majority suggest that when a district court invokes § 1915(d) it should cite the statute and provide a brief explanation as to why the complaint is frivolous or malicious. Here, it took an en banc majority untold hours and several pages of writing to find that the district judge dismissed under § 1915(d). Such inefficient exercises can be avoided only if district courts cite the statute and explain in a few sentences why the complaint fails under the statutory standard.
Rather than wrench this case into § 1915(d), I would conclude that the district judge meant what he said and dismissed on the merits. That, of course, would require that the judgment be vacated and the case remanded to give Cochran the opportunity to be heard. Again, I respectfully dissent.
Chief Judge ERVIN, Judge MURNA-GHAN and Judge MOTZ have asked me to say that they join in this dissent.
. There is some case law discussing the narrow circumstances in which a court may raise sua sponte the issue of res judicata. See, e.g., Holloway Constr. Co. v. U.S. Dept. of Labor, 891 F.2d 1211, 1212 (6th Cir.1989); Carbonell v. Louisiana Dept. of Health & Human Resources, 772 F.2d 185, 189 (5th Cir.1985). These cases stand for the proposition that, under limited circumstances, a court may consider on its own motion the issue of res judicata, a defense which ordinarily is waived unless affirmatively pleaded. They do not address the issue whether a court may sua sponte dismiss (on res judicata grounds or for failure to state a claim) a complaint without notice and an opportunity to respond. See Nevada Employees Assoc., Inc. v. Keating, 903 F.2d 1223, 1225 (9th Cir.), cert. denied, 498 U.S. 999, 111 S.Ct. 558, 112 L.Ed.2d 565 (1990) (trial court may sua sponte raise res judicata so long as parties are permitted to submit briefs on the issue). Thus, assuming that the district judge was free to raise sua sponte the res judicata issue, the question still remains whether dismissal was proper without notice and a chance to be heard.
. A few circuits will affirm such (without notice) dismissals when it is “patently obvious” that the plaintiff could not possibly succeed. See Murphy, 960 F.2d at 748; McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir.1991); Baker v. Director, U.S. Parole Comm'n, 916 F.2d 725, 726-27 (D.C.Cir.1990); Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir.1987). However, a "patendy-impossible-to-succeed” exception to the general prohibition is unwarranted. Any judicial economy that this exception might afford in the short run would be outweighed by the costs generated by encouraging premature dismissals. Appellate courts would routinely be required to measure scant records against the exception's arguably subjective standard. More remands would be likely, causing further work for the district courts. See Lewis v. New York, 547 F.2d 4, 6 (2d Cir.1976). On the other hand, the burden imposed by an absolute prohibition is minimal; a district court need only give notice with an opportunity for a response before entering a dismissal on the merits.
. The majority cannot avoid the Boag rule by citing Brown v. Briscoe, 998 F.2d 201 (4th Cir.1993), and White v. Gregory, 1 F.3d 267 (4th Cir.1993), cert. denied, -U.S. -, 114 S.Ct. 931, 127 L.Ed.2d 223 (1994). See ante at 1315-16 and n. 2. Although we began Brown v. Briscoe by saying that the district court dismissed for failure to state a claim, we ended the opinion by holding “that the district court did not abuse its discretion by dismissing this cause of action as frivolous.” 998 F.2d at 204. Our holding thus indicates that the district court in Brown did exercise § 1915(d) discretion in the first instance. Nevertheless, assuming arguendo that Brown permits this court to affirm on § 1915(d) grounds when the district court never exercised its discretion under § 1915(d), Brown failed to follow Boag, a case Brown does not cite. White v. Gregory does not allow a dismissal on the merits to be affirmed on alternative § 1915(d) grounds. There, the district court did dismiss the complaint under § 1915(d) as factually frivolous; we affirmed the dismissal under § 1915(d), *1322citing legal frivolity. 1 F.3d at 269. Thus, the district court in White exercised its discretion in the first instance under § 1915(d). Here, the district court did not.