concurring and dissenting:
I agree with the majority that the order of the district court is appealable. I do not think that such a case should be closed for what amounts to merely administrative convenience. I further agree that the case must be remanded. But, at that point my agreement with the majority ends. The balance of the majority opinion is based on the proposition that the plaintiffs case has survived a summary judgment motion filed by the defendants. Because the record does not support the fact that such motion was ever filed, I cannot join the balance of the majority’s decision, and, as to deciding those questions, I respectfully dissent.
I suggest we reach out far too far in order to decide the questions that the opinion is really devoted to.
The record from beginning to end discloses that no motion for summary judgment was filed by the defendants.
The majority has correctly set its guideline (p. 112) within the quotation in Holt v. Pitts, 619 F.2d 558, 561-62 (6th Cir.1980), that
“when an inmate’s civil action reaches the trial stage, and his claim proves sufficiently meritorious to survive motions for dismissal and summary judgment, a court must then take all reasonable steps necessary to insure that the inmate receives the ‘fair day in court’ to which he is entitled.” (Italics added by this writer)
I agree with that statement from Holt. What I do not agree with is the majority’s failure to follow the very quotation within which it has set its decision.
This case has not “reache[d] the trial stage,” for the claim here has not been proven to be “sufficiently meritorious to survive motions for dismissal and summary judgment.” While it has survived motions to dismiss, no motion for summary judgment has yet been made, and so the case is not “ripe for trial” as the majority correctly relates the standard on p. Ill of its opinion. Until the case is “ripe for trial”, there is no need for a district court to decide, for. it is not called upon to decide, what it is going to do, if anything, about a prisoner plaintiff who is lodged in a prison in another State some distance from the place of holding court. Neither is the district court called upon to decide whether or not a writ of habeas corpus ad testifican-dum should or may issue, or whether such a writ may be issued extraterritorially. The majority has decided all these knotty questions, which are not free from doubt or conflicting decisions, without being called upon so to do.
My conclusion that we reach out too far is fortified by the majority opinion itself which does not mention whether or not the prisoner’s claim has survived a motion for summary judgment but proceeds upon the necessary inference that it has, which is not the fact.
Further support for my position is contained in the majority’s unnumbered footnote on page 111 of its opinion.
Being unable to avoid the fact that the defendants did not file a motion for summary judgment, the majority now relies on the fact that the district court might have granted summary judgment to the defendants upon the motions for summary judgment made by the plaintiff. What the footnote does not explain is that in Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971 (1949), the Court reversed a court of appeals which had awarded summary judgment to a party who had not made a motion therefor in the district court. The court based its decision on the fact that, since the district court had not considered the matter, there was no notice to the party against whom summary judgment was entered. Thus, while summary judgment may be entered in favor of a party not so moving, it may not be done without notice, as the majority opinion fairly may be read to imply.
In deciding the case “in the broader context,” as the majority describes its own opinion, the majority opinion simply dis*116agrees that leaving the question open to be decided by the district court would be “an appropriate exercise of judicial restraint and economy.” The problem is that judicial restraint and judicial economy are frequently antithetical as they are here. Especially in the case of a constitutional question, judicial restraint must prevail, and here the question is the constitutional right of access to the courts.
I suggest the majority does not heed the long recognized rules of construction set out in Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Justice Brandéis concurring).
(2) The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’ ... ‘It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’ ...
(3) The Court will not ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ ... (Citations omitted)
In sum, I would remand the case and permit the defendants to file a motion for summary judgment. The case should then go on from there. We have no call and, indeed, no warrant to proceed further.