Summary
stating that a district court should have provided a pro se litigant with notice that it was considering dismissing his case as a sanction
Summary of this case from Burns v. BuserOpinion
No. 20-6268
09-01-2020
FRANKLIN C. SMITH, Plaintiff - Appellant, v. CPL D.N. BEAVERS, Corporal; CPL. UZZLE, Corporal/Intel; D.A. TAYLOR, Deputy/Intel; B.F. ROZAS, Deputy/Intel; J. VARGAS, Captain; CPL. DEVO, Corporal; CPL. CHRISTIE, Corporal; CPL. BRYANT, Corporal, Defendants - Appellees.
Franklin C. Smith, Appellant Pro Se. Jeff W. Rosen, PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellees.
UNPUBLISHED
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, Chief District Judge. (2:17-cv-00336-MSD-LRL) Before KING and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit Judge. Vacated and remanded by unpublished per curiam opinion. Franklin C. Smith, Appellant Pro Se. Jeff W. Rosen, PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Franklin C. Smith appeals the dismissal of his 42 U.S.C. § 1983 action as a sanction for abusive litigation tactics. While we express no opinion on the propriety of dismissal as a sanction for Smith's behavior during the course of the litigation, the district court should have given Smith, a pro se litigant, notice that sanctions were under consideration and an opportunity to respond before exercising its inherent authority and dismissing his claims. Cf. Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (holding that court must provide notice of requirements of summary judgment rule before granting summary judgment against pro se litigant). We therefore vacate the district court's order and remand for further proceedings. Smith's Motion to Compel Petition for the Cease and Desist Order is denied. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
VACATED AND REMANDED