IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50257
TIMOTHY D. V. BAZROWX,
Plaintiff-Appellant,
versus
WAYNE SCOTT, Director,
Texas Department of Criminal
Justice, Institutional Division;
S. O. WOODS, JR.; EVELYN B. WILLIAMS;
KENNETH FLORANCE,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
March 25, 1998
Before JOLLY, WIENER and STEWART, Circuit Judges.
PER CURIAM:
This appeal from the district court’s sua sponte dismissal,
pursuant to 42 U.S.C. § 1997e(c), for failure to state a claim on
which pro se Plaintiff-Appellant Timothy D. V. Bazrowx, a Texas
prison inmate, could recover in his civil rights suit under
42 U.S.C. § 1983, requires us to establish as a matter of first
impression in this circuit the appropriate standard of review for
such a dismissal and, applying such standard, to determine whether
the district court committed reversible error. We conclude that
such dismissals under § 1997e(c) should be reviewed de novo on
appeal, and hold that the district court did not err reversibly in
dismissing Appellant’s suit without prejudice for failure to state
a claim for which relief could be granted.
As Appellant was not proceeding in forma pauperis, his
complaint could not be dismissed pursuant to § 1915(e)(2).1 Under
the amendments to § 1997e and § 1915 wrought by the Prison
Litigation Reform Act of 1995 (PLRA), the district court is
required to dismiss a prisoner’s complaint if it fails to state a
claim for which relief can be granted. That phraseology is well
known from Rule 12(b)(6), under which dismissal is “viewed with
disfavor” and is reviewed de novo.2 Although other circuits have
determined that appeals from dismissals under § 1915(e)(2)(B)(ii)
and § 1915A for failure to state a claim should be reviewed under
the same de novo standard as appeals from dismissals under Rule
12(b)(6),3 we find no persuasive or controlling authority for the
appropriate standard of review for a dismissal under § 1997e(c) for
failure to state a claim. As we nevertheless agree with the logic
of those circuits that have adopted the de novo standard of review
for such dismissals under § 1915(e)(2)(B)(ii) and § 1915A because
1
See Marts v. Hines, 117 F.3d 1504, 1505 (5th Cir. 1997)
(en banc) (noting that a dismissal under the IFP statute does not
act as a dismissal on the merits but merely as a denial of IFP
status), cert. denied, 118 S. Ct. 716 (1998).
2
Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 246-47 (5th
Cir. 1997) (citation and internal quotation omitted).
3
McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997);
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997); Atkinson
v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996).
2
that is the appropriate standard for Rule 12(b)(6) dismissals, we
today adopt the de novo standard of review as appropriate in this
circuit for appeals from such dismissals under § 1997e(c); and we
now proceed to review the dismissal of Appellant’s claim
accordingly.
Generally a district court errs in dismissing a pro se
complaint for failure to state a claim under Rule 12(b)(6) without
giving the plaintiff an opportunity to amend.4 The district court
may dismiss an action on its own motion under Rule 12(b)(6) “as
long as the procedure employed is fair.”5 True, the district court
erred in failing to give Appellant notice of the court’s intention
to dismiss his suit or an opportunity to amend his complaint.6
Such error may be ameliorated, however, if the plaintiff has
alleged his best case,7 or if the dismissal was without prejudice.8
Here, the district court dismissed Appellant’s case without
prejudice. Moreover, our careful and thorough de novo review
satisfies us that, as it stands, Appellant’s complaint does fail to
state a claim for which relief could be granted. Given that
4
Moawad v. Childs, 673 F.2d 850, 851-52 (5th Cir. 1982).
5
5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1357, at 301 (2d ed. 1990) (footnote omitted); see
Ricketts v. Midwest Nat’l Bank, 874 F.2d 1177, 1185 (7th Cir. 1989)
(requiring “both notice of the court’s intention and an opportunity
to respond” before sua sponte dismissal for failure to state a
claim).
6
See Moawad, 673 F.2d at 851-52.
7
See Jacquez v. Procunier, 801 F.2d 789, 792-93 (5th Cir.
1986).
8
See Moawad, 673 F.2d at 851-52.
3
conclusion and the district court’s dismissal without prejudice,
any error in failing to give notice and allow amendment is
harmless. The ruling of the district court is, therefore,
AFFIRMED.
4