Victor Bayron v. Corr. Officer Trudeau & Corr. Couns. G. Petrushun, Individually & in Their Off. Capacities, 702 F.2d 43 (2d Cir. 1983). · Go Syfert
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Victor Bayron v. Corr. Officer Trudeau & Corr. Couns. G. Petrushun, Individually & in Their Off. Capacities, 702 F.2d 43 (2d Cir. 1983). Cases Citing This Book View Copy Cite
40 citation events (1 in the last 25 years) across 10 distinct courts.
Strongest positive: Shaefer v. Demar (In Re Demar) (nyeb, 2007-08-13) · Strongest negative: Harry Franklin v. Ms. Murphy and Hoyt Cupp (ca9, 1984-10-23)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 23 distinct citers. How cited ↗
discussed Cited "but see" Harry Franklin v. Ms. Murphy and Hoyt Cupp
9th Cir. · 1984 · signal: but see · confidence high
But see Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir. 1983); Lewis v. New York, 547 F.2d 4, 5 (2d Cir.1976) (error to dismiss under section 1915(d) before service of process, notice, and an opportunity to respond). 5 *1227 We find persuasive the reasoning of the cases holding that courts may dismiss frivolous actions filed in forma pauperis before service of process and adopt the procedure recommended by the Federal Judicial Center and applied here by the district court.
discussed Cited as authority (rule) Shaefer v. Demar (In Re Demar)
Bankr. E.D.N.Y. · 2007 · confidence medium
See 5A Wright & Miller, Federal Practice and Procedure § 1357 at 301 (Civ.2d 1990); Fredyma v. At &T Network Systems, Inc., 935 F.2d 368 (1st Cir.1991); Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir. 1983).
discussed Cited as authority (rule) Hiersche v. Brassard (In Re Brassard)
Bankr. D. Me. · 1994 · confidence medium
See also Ricketts v. Midwest Nat’l Bank, 874 F.2d 1177, 1185 (7th Cir.1989); Tingler v. Marshall, 716 F.2d 1109, 1112 (6th Cir.1983); Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983); Jefferson Fourteenth Assoc. v. Wometco de Puerto Rico, Inc., 695 F.2d 524 , 526 (11th Cir.1983); Franklin v. State of Oregon, State Welfare Division, 662 F.2d 1337, 1341 (9th Cir.1981).
discussed Cited as authority (rule) James H. Ricketts, Sr. v. Midwest National Bank, James H. Ricketts, Sr. v. Sharp Investment Company
7th Cir. · 1989 · confidence medium
Tingler v. Marshall, 716 F.2d 1109, 1112 (6th Cir.1983) (requiring (1) service on defendants, (2) notice of the court’s intent to dismiss, (3) the court to give plaintiff and defendant an opportunity to respond, and (4) the court to state reasons for dismissal); Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983) (sua sponte dismissal reversed and remanded for service on defendants and response); Jefferson Fourteenth Assoc. v. Wometco de Puerto Rico, Inc., 695 F.2d 524 , 526 (11th Cir.1983) (Federal Rules do not authorize sua sponte dismissal on the merits, and such action is only proper when p…
discussed Cited as authority (rule) Elliott v. Bronson
2d Cir. · 1989 · confidence medium
Where colorable and plausible claims are advanced, dismissal at such an early stage deprives the court of the benefit of the defendant's answering papers, Robles v. Coughlin, 725 F.2d at 15 , and often results in the " 'wasteful * * * shuttling of the lawsuit between the district court and the appellate courts.' " Bayron v. Trudeau, 702 F.2d 43, 46 (2d Cir.1983) (quoting Lewis v. New York, 547 F.2d 4, 6 (2d Cir.1976)). 3 Applying these general principles, we are convinced that the district court acted prematurely in dismissing this complaint.
discussed Cited as authority (rule) Elliott v. Bronson
2d Cir. · 1989 · confidence medium
Where colorable and plausible claims are advanced, dismissal at such an early stage deprives the court of the benefit of the defendant’s answering papers, Robles v. Coughlin, 725 F.2d at 15 , and often results in the “ ‘wasteful * * * shuttling of the lawsuit between the district court and the appellate courts.’ ” Bayron v. Trudeau, 702 F.2d 43, 46 (2d Cir.1983) (quoting Lewis v. New York, 547 F.2d 4, 6 (2d Cir.1976)).
discussed Cited as authority (rule) Joseph J. Hess, Jr. v. New Jersey Transit Rail Operations, Inc.
2d Cir. · 1988 · confidence medium
As a result, we have not had the benefit of that “concrete adverseness which sharpens the presentation of issues.” Flast v. Cohen, 392 U.S. 83, 99 , 88 S.Ct. 1942, 1952 , 20 L.Ed.2d 947 (1968) (quoting Baker v. Carr, 369 U.S. 186, 204 , 82 S.Ct. 691, 703 , 7 L.Ed.2d 663 (1962)); see Princeton University v. Schmid, 455 U.S. 100, 102 , 102 S.Ct. 867, 868 , 70 L.Ed.2d 855 (1982) (per cu-riam); Bayron v. Trudeau, 702 F.2d 43, 45-46 (2d Cir.1983).
cited Cited as authority (rule) Richard Sexton v. Bruce J. Ryan
2d Cir. · 1986 · confidence medium
See Massop v. Coughlin, 770 F.2d 299, 301 (2d Cir.1985); Cameron v. Fogarty, 705 F.2d 676, 678 (2d Cir.1983); Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983).
discussed Cited as authority (rule) Morello v. James
W.D.N.Y. · 1986 · confidence medium
See Massop v. Coughlin, 770 F.2d 299, 301 (2d Cir.1985); Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983); Bayron v. Trudeau, 702 F.2d 43, 46 (2d Cir.1983). 7 .Indeed, in at least two significant respects, the inmate’s allegations presented an even stronger case than this one.
discussed Cited as authority (rule) Kenneth Massop v. Thomas Coughlin, Iii, Commissioner, E.S. Lefevre, Superintendent, Clinton Correctional Facility, and Michael K. Delisle, C.O. (2×) also: Cited "see"
2d Cir. · 1985 · confidence medium
E.g., Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983).
cited Cited as authority (rule) State Ex Rel. Coats v. Lewis
Mo. Ct. App. · 1985 · confidence medium
Cameron v. Fogarty, 705 F.2d 676, 678 (2nd Cir.1983); Bayron v. Trudeau, 702 F.2d 43, 45 (2nd Cir.1983); Hogan v. Midland County Commissioners Court, 680 F.2d 1101, 1103 (5th Cir.1982).
discussed Cited as authority (rule) Satchell v. Dilworth
2d Cir. · 1984 · confidence medium
See id.; see also Cruz v. Beto, 405 U.S. 319, 322 , 92 S.Ct. 1079, 1081 , 31 L.Ed.2d 263 (1972); Haines v. Kerner, 404 U.S. 519, 520-21 , 92 S.Ct. 594, 595-96 , 30 L.Ed.2d 652 (1972); Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983).
discussed Cited as authority (rule) Satchell v. Dilworth
2d Cir. · 1984 · confidence medium
See id,.; see also Cruz v. Beto, 405 U.S. 319, 322 , 92 S.Ct. 1079, 1081 , 31 L.Ed.2d 263 (1972); Haines v. Kerner, 404 U.S. 519, 520-21 , 92 S.Ct. 594, 595-96 , 30 L.Ed.2d 652 (1972); Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983).
discussed Cited as authority (rule) Angel Robles, A. Dukes, D. Hooker, R. Bonner, D. Andrews, E. Lowe, R. Winifield, T. Ephram, M. Payne and R. Rassley, Angel Robles and Milton Payne v. T.A. Coughlin, Commissioner, Department of Correctional Services and H.J. Smith, Superintendent, Attica Correctional Facility (Acf), Angel Robles and Milton Payne v. T.A. Coughlin, Commissioner, Department of Correctional Services H.J. Smith, Superintendent, Acf Sgt. Hinnenburg, Acf and Correction Officer Wisiorek, Acf
2d Cir. · 1983 · confidence medium
Cameron v. Fogarty, 705 F.2d 676, 678 (2d Cir.1983); Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983); Moorish Science Temple of America, Inc. v. Smith, 693 F.2d 987, 990 (2d Cir.1982); Fries v. Barnes, 618 F.2d 988, 989 (2d Cir.1980).
discussed Cited as authority (rule) Robles v. Coughlin
2d Cir. · 1983 · confidence medium
Cameron v. Fogarty, 705 F.2d 676, 678 (2d Cir.1983); Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir. 1983); Moorish Science Temple of America, Inc. v. Smith, 693 F.2d 987, 990 (2d Cir. 1982); Fries v. Barnes, 618 F.2d 988, 989 (2d Cir.1980).
discussed Cited as authority (rule) Samuel L. Sommer v. Correctional Officer R. Dixon, Sergeant Miner, Lt. McCasland
2d Cir. · 1983 · confidence medium
Meaningful review is impeded in this type of case when the district court dismisses the complaint before service of process, Bayron v. Correctional Officer Trudeau, 702 F.2d 43, 45 (2d Cir.1983), and we commend the district court for ordering service of process and the development of a record.
discussed Cited as authority (rule) Kenneth S. Cameron v. Matthew Fogarty
2d Cir. · 1983 · confidence medium
Bayron v. Correctional Officer Trudeau, 702 F.2d 43, 45 (2d Cir.1983); Moorish Science Temple of America, Inc. v. Smith, 693 F.2d 987, 990 (2d Cir.1982); Lewis v. State of New York, 547 F.2d 4, 6 (2d Cir.1976).
cited Cited "see" Baker v. Cuomo
2d Cir. · 1995 · signal: see · confidence high
See Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983); Moorish Science Temple of America, Inc. v. Smith, 693 F.2d 987, 990 (2d Cir.1982).
cited Cited "see" Baker v. Cuomo
2d Cir. · 1995 · signal: see · confidence high
See Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983); Moorish Science Temple of America, Inc. v. Smith, 693 F.2d 987, 990 (2d Cir.1982).
discussed Cited "see" Roosevelt Brandon v. District of Columbia Board of Parole
D.C. Cir. · 1984 · signal: accord · confidence high
Accord Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983) (“sua sponte dismissal of a pro se prisoner petition before service of process and the filing of a response by the state is strongly disfavored”).
cited Cited "see" Benny Williams v. Robert Kullman and Robert Abrams, Attorney General, State of New York
2d Cir. · 1983 · signal: see · confidence high
See Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983).
cited Cited "see, e.g." Salahuddin v. Cuomo
2d Cir. · 1988 · signal: see, e.g. · confidence medium
See, e.g., Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983); Fries v. Barnes, 618 F.2d 988, 989 (2d Cir.1980) (citing cases).
discussed Cited "see, e.g." Salahuddin v. Cuomo
2d Cir. · 1988 · signal: see, e.g. · confidence medium
See, e.g., Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir.1983); Fries v. Barnes, 618 F.2d 988, 989 (2d Cir.1980) (citing cases). 10 In the present case, there is no doubt that Salahuddin's complaint fails to comply with Rule 8's "short and plain statement" requirement.
Retrieving the full opinion text from the archive…
Victor BAYRON, Petitioner-Appellant,
v.
Correctional Officer TRUDEAU and Correctional Counselor G. Petrushun, Individually and in Their Official Capacities, Et Al., Respondents-Appellees
688, Docket 82-2223.
Court of Appeals for the Second Circuit.
Feb 25, 1983.
702 F.2d 43
1983 U.S. App. LEXIS 30141
Victor Bayron, pro se.
Feinberg, Cardamone, Davis.
Cited by 30 opinions  |  Published
Pinpoint authority: bottom 55%
FEINBERG, Chief Judge:

Victor Bayron, a prisoner at. Clinton Correctional Facility, appeals pro se from a judgment of the United States District Court for the Northern District of New York dismissing sua sponte and without service of process Bayron’s complaint under 42 U.S.C. § 1983. Because the dismissal of the complaint was premature, the judgment of the district court is vacated and the case is remanded for the service of process and further proceedings.

I.

In April 1981, Bayron filed a complaint in the Northern District against defendants Correctional Officer Trudeau and Correctional Counselor Petrushun in their individual and official capacities. The complaint, set forth on a form that the Northern District clerk’s office supplies to prisoners, covered seven pages. Bayron alleged, among other things, that during a search of his cell, the named officers in his presence either destroyed or took without ever returning certain books, medication and other personal items, and intentionally damaged other personal belongings. The complaint also alleged that one of the officers read through Bayron’s legal papers, and that Officer Petrushun filed an intentionally false misbehavior report against him. The last action allegedly resulted in unwarranted and arbitrary disciplinary action by the Adjustment Committee, including “false imprisonment” for seven days and lost privileges for 23 days. Bayron sought declaratory and injunctive relief against the officers as well as compensatory and punitive damages.

The district judge referred the complaint to Magistrate Edward M. Conan. In April 1982, the magistrate granted Bayron in for-ma pauperis status and ordered the complaint to be filed without payment of fees. At the same time, in a three-page “Report-Recommendation,” the magistrate recommended that the complaint be dismissed. Despite the allegations in the complaint regarding the cell search, property seizure and destruction and reading of Bayron’s legal papers, the magistrate interpreted Bayron’s complaint as only seeking “relief from what he claims was an unfavorable Adjustment Committee result.” The magistrate concluded that since in this regard Bayron did not allege any specific constitutional deprivation, such as lack of a hearing, he did not state a cause of action under § 1983.

[*45] In June 1982, the district judge approved the magistrate’s Report-Recommendation, and dismissed Bayron’s complaint sua sponte. Up to this point, there had been no service of process upon defendants and, of course, no appearance by or response from them. A copy of the judge’s order of dismissal was, however, apparently sent to the Attorney General of New York State. It is not clear from the record whether the Attorney General had also received earlier a copy of the magistrate’s Report-Recommendation.

In any event, Bayron filed a timely notice of appeal and, subsequently, a brief and appendix in this court. The appendix consisted of a copy of the docket entries in the district court and a copy of the magistrate’s Order and Report-Recommendation. Thereafter, the Attorney General wrote the clerk of this court a short letter, the key paragraph of which was:

This office has no record that defendants were ever served with the complaint, nor does the Record on Appeal contain any Marshall’s affidavit of service. Defendants decline to waive their right to service of the complaint and will not defend this appeal (Lewis v. State of New York, 547 F.2d 4 [2d Cir.1976]).

The appeal in due course came before this panel and was taken on submission upon the record as set forth above.

II.

This court has only recently reaffirmed the principle that sua sponte dismissal of a pro se prisoner petition before service of process and the filing of a response by the state is strongly disfavored. See Moorish Science Temple of America, Inc. and Bro. R. Smallwood-El v. Smith, 693 F.2d 987, 989 (2d Cir.1982), and the cases there cited. Dismissal of a prisoner’s pro se complaint is warranted only when it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct, 99, 101-102, 2 L.Ed.2d 80 (1957). Moreover, the complaint must be liberally construed, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972), and the allegations taken as true, Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964).

With these principles in mind, it is clear that the district court acted prematurely. Putting to one side whether Bayron failed to allege any specific constitutional deprivations with regard to the disciplinary hearings, [1] the district court erred in dismissing on the record before it Bayron’s allegations concerning intentional deprivation of property and reading of his legal papers. The magistrate concluded that these allegations were “not operative” merely because plaintiff did not repeat them in the last portion of his complaint labelled “Statement of Claim.” However, the earlier allegations appeared under a printed heading on the form supplied to plaintiff that was also entitled “Statement of Claim.” In addition, these allegations were recounted in great detail and at some length. The magistrate and the district judge gave much too technical a reading to a pro se prisoner’s complaint, particularly when the “nonoperative” allegations do make out a claim under § 1983. There are numerous cases holding that similar allegations regarding intentional confiscation or destruction of a prisoner’s property without justification or explanation state a § 1983 claim. [2] And there are also cases protecting a prisoner’s right to access to the courts and to privacy in legal correspondence. [3] It may[*46] be that the officers had sufficient reason to take or destroy Bayron’s property and to examine the documents in his cell, assuming as we must that the officers did what Bay-ron charges. But we cannot know that on the state of this record, and more importantly, neither could the district court nor the magistrate.

Indeed, we are dismayed to find ourselves again in the very position we deplored in Lewis v. State of New York, cited in the letter to us from the Attorney General. We there pointed out in a case also alleging confiscation of a prisoner’s property:

Untimely dismissal may prove wasteful of the court’s limited resources rather than expeditious, for it often leads to a shuttling of the lawsuit between the district and appellate courts. The undesirable consequences of premature dismissal are amply illustrated by the awkward posture this case presents on appeal. [Appellant], having had his action dismissed for failure to state a claim, asks us to rule on the sufficiency of his complaint. The State of New York and the other defendants, however, refuse to defend the propriety of [the judge’s] order. They have never been made parties to the action, and decline to waive their right to service. Accordingly, they have not briefed the question of the sufficiency of [appellant’s] complaint. We are confronted, therefore, with a controversy where the defendants refuse to participate because they are not parties, and to resolve it at this stage and under these circumstances would be unnecessary and wasteful.

547 F.2d at 6 (footnotes omitted). We realize that pro se petitions from prisoners are numerous in the Northern District and are burdensome, but it still would have been better to serve process on defendants and require a response, as suggested in Lewis and in later opinions making the same point. See, e.g., Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.1983); Fries v. Barnes, 618 F.2d 988, 989 (2d Cir.1980); Ron v. Wilkinson, 565 F.2d 1254, 1258-59 (2d Cir. 1977). See also Comment, State Prisoners, Federal Courts, and Playing by the Rules: An Analysis of the Aldisert Committee’s Recommended Procedures for Handling Prisoner Civil Rights Cases, 5 U. Puget Sound L.Rev. 131, 146-49 (1981).

We reverse and remand for further proceedings consistent with this opinion.

1

. As to this, it appears that the magistrate and the district court were correct.

2

. E.g., Ferranti v. Moran, 618 F.2d 888, 891 (1st Cir.1980) (radio); Jensen v. Klecker, 599 F.2d 243, 245 (8th Cir.1979) (per curiam) (prison scrip); Alexanian v. New York State Urban Development Corp., 554 F.2d 15, 17 (2d Cir.1977) (per curiam) (money and personal possessions); Kimbrough v. O’Neil, 545 F.2d 1059, 1061 (7th Cir.1976) (in banc) (diamond ring).

3

. E.g., Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977) (“the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing . .. adequate law libraries or adequate assistance .... ”);[*46] Procunier v. Martinez, 416 U.S. 396, 419-22, 94 S.Ct. 1800, 1814-15, 40 L.Ed.2d 224 (1974) (reasonable access to assistance of attorneys necessary to protect prisoners’ right of access to courts); Wilkinson v. Skinner, 462 F.2d 670 (2d Cir.1972) (regulation forbidding examination or censorship of correspondence between prisoner and counsel adequately protects right to assistance of counsel); Corby v. Conboy, 457 F.2d 251 (2d Cir.1972) (prison authorities may not place burdens on prisoners’ constitutional right of access to courts, e.g., by confiscating legal books).