Herman Brown v. Merle R. Schneckloth, Superintendent of California Conservation Center

This is an appeal from an order of the district court dismissing appellant’s complaint as frivolous and malicious under 28 U.S.C. § 1915 (d). Appellant, a California state prisoner, claimed he was forced to stand outside the walls of the penal institution during working hours in inclement weather as punishment for his refusal to go out and work with his assigned crew. The complaint alleged cruel and unusual punishment and violation of the Civil Rights Act.

Appellant contends that the district court erred, as a matter of law, in dismissing his action pursuant to § 1915(d) since summons had already been issued and served upon appellees. He cites the footnote in Wiltsie v. California Dept. of Corrections (9 Cir. 1968), 406 F.2d 515 , 517, reading, “The provisions of Section 1915(d) for dismissal of a frivolous or malicious action actually contemplates sua sponte action by the district court before summons has issued, rather than action pursuant to a motion to dismiss.” The Wiltsie footnote is clearly dicta and is not controlling, since the dismissal there was for failure to state a claim.

On the contrary, “the preferable procedure for the District Court to follow is to grant leave…