19-1014-pr

Baxter v. Wagner

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON 

ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second 

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in 

the City of New York, on the 23rd day of April, two thousand twenty.

PRESENT: BARRINGTON D. PARKER,

DENNY CHIN,

WILLIAM J. NARDINI,

Circuit Judges.

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JASON I. BAXTER,

Plaintiff-Appellant,

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BART E. WAGNER,

Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT: TATIANA LAING and LEVI KLINGERCHRISTIANSEN, Law Students, supervised by 

Jonathan Romberg, Esq., for the Center for 

Social Justice, Seton Hall University School of 

Law, Newark, New Jersey.
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FOR DEFENDANT-APPELLEE: No appearance.

Appeal from the United States District Court for the Western District of 

New York (Larimer, J.).

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is VACATED, and the case is 

REMANDED for further proceedings consistent with this order.

Plaintiff-appellant Jason I. Baxter, an inmate at Southport Correctional 

Facility ("Southport"), appeals from a judgment entered by the district court on March 

22, 2019, sua sponte dismissing his pro se complaint (the "Complaint") with prejudice. By 

order dated the same day, the district court found that the Complaint -- filed under 42 

U.S.C. § 1983 against defendant-appellee Bart E. Wagner, a corrections captain at 

Southport -- failed to state a claim on which relief could be granted and dismissed it

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(a). We assume the parties' 

familiarity with the underlying facts, the procedural history of the case, and the issues 

on appeal.

Broadly, the Complaint alleges that Wagner violated Baxter's 

constitutional rights by denying him the ability to make telephone calls at Southport. 

Specifically, Baxter raises First and Fourteenth Amendment claims, alleging that 

Wagner retaliated against him for filing grievances by denying him access to the prison 

phone and thereby treated him differently from other similarly situated inmates. Read 
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liberally because it was filed pro se, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), the 

Complaint also alleges that Baxter's First Amendment right to access the courts and 

Fourteenth Amendment right to due process were violated. After granting Baxter's 

motion to proceed in forma pauperis, the district court sua sponte dismissed the case with 

prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(a) on the grounds that 

Baxter failed to state a claim on which relief could be granted. On appeal, Baxter, now 

represented by counsel, asks that we reverse the district court's sua sponte dismissal or, 

alternatively, vacate the judgment with instructions to the district court to grant him an 

opportunity to amend the Complaint.

"We review de novo a district court's sua sponte dismissal of an in forma 

pauperis complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)." Fowlkes v. Ironworkers Local 40, 

790 F.3d 378, 384 n.8 (2d Cir. 2015). Although the district court must dismiss a case if 

the action "fails to state a claim on which relief may be granted," 28 U.S.C. 

§ 1915(e)(2)(B)(ii), sua sponte dismissal of a § 1983 claim is inappropriate if the 

complaint alleges that "(1) the defendant was a state actor . . . when he committed the 

violation and (2) the defendant deprived the plaintiff of rights, privileges or immunities 

secured by the Constitution or laws of the United States." Milan v. Wertheimer, 808 F.3d 

961, 964 (2d Cir. 2015) (internal quotation marks omitted). On review, we "accept as 

true all facts described in the complaint," id. at 963, and interpret a pro se litigant's 

submissions "to raise the strongest arguments that they suggest," Triestman v. Fed. 
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Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks omitted). 

Finally, we review a district court's denial of leave to amend a complaint for abuse of 

discretion. See Chavis v. Chappius, 618 F.3d 162, 167 (2d Cir. 2010). "A pro se complaint 

should not be dismissed without the Court granting leave to amend at least once when 

a liberal reading of the complaint gives any indication that a valid claim might be 

stated." Id. at 170 (internal quotation marks and alterations omitted).

Here, the district court sua sponte dismissed the Complaint with prejudice 

after considering Baxter's due process and retaliation claims. It did not, however, 

address Baxter's First Amendment claims that he was denied access to the courts and

deprived of his right to make a phone call,1 or his Equal Protection claim that he was 

treated differently from other similarly situated inmates. While we do not consider the 

viability of these claims, it is difficult to imagine that the "draconian device" of sua 

sponte dismissal, Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) (internal quotation 

marks omitted), was appropriate here, particularly considering that the court did not 

address all of Baxter's claims. In any event, we conclude that the district court abused 

1 This Court has not addressed whether a prisoner has a First Amendment right to 

make phone calls, but at least one Circuit has held they do in at least some

circumstances. See Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000).

Additionally, it is unclear from Baxter's complaint whether he alleges that he was 

denied access to the telephone entirely or whether he was denied additional telephone 

access after receiving the fifteen-minute access period to which he was entitled under 

Southport's regulations.
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its discretion when it denied Baxter an opportunity to file an amended complaint by

dismissing his Complaint with prejudice. Accordingly, we conclude that Baxter must

be offered the opportunity to amend the Complaint to further develop his claims.2

* * *

For the foregoing reasons, we VACATE the judgment below 

and REMAND to the district court so that Baxter may be provided the opportunity to 

amend the Complaint.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

2 On remand, the district court may wish to appoint pro bono counsel to assist Baxter in 

filing an amended complaint.