* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 19 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

MARVIN BROWN,

Plaintiff-Appellant,

v. NEW MEXICO DISTRICT COURT CLERKS; VICKI AKENHEAD, Managing Reporter; ANNETTE G. ARAGON; and VIOLA W. LEWIS, Official Court Reporters,

Defendants-Appellees. No. 97-2044 (D.C. No. CIV-96-968-JC) (D. N.M.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Marvin Brown, a prisoner proceeding pro s e, appeals the district court’s sua sponte dismissal of his complaint under28 U.S.C. § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6), with prejudice, for failu re to state a claim. Plaintiff’s complaint contends that he needed certain transcrip ts of an August 1992 hearing in his criminal action in order to file a habeas pe tition. He contends he requested these transcripts from the defendant court reporter s, who first told him there was no hearing on that date, but ultimately located and sent him the transcripts of the hearing. He alleged that when he received the tran scripts, they did not accurately reflect all of the conversations during the hearing . Plaintiff asserted that the court reporters purposely left out portions of the procee dings, allegedly to protect the judge from “incriminating actions” taken during the hearing. The district court dismissed plaintiff’s complaint sua sponte, prior to service upon the defendants. Applying the rule of liberal construction for pro se actions, see Haines v. Kerner , 404 U.S. 519, 520-21 (1972), the district court construed plaintiff’s complaint as an action under 42 U.S.C. § 1983. The district court stated that plaintiff failed to allege that afederal right was violated or that any such deprivation was caused by a person acting “under color of state law.” The district court concluded that plaintiff failed to state a claim upon which relief-3-

could be granted and dismissed plaintiff’s complaint under § 1915(e)(2) and Rule 12(b)(6) with prejudice. On appeal, plaintiff contends the district court erred in dismissing his complaint without first giving him an opportunity t o cure any defects in his complaint. We review a Rule 12(b)(6) dismissal de novo. See Chemical Weapons Working Group, Inc. v. United States Dep’t of the Army , 111 F.3d 1485, 1490 (10th Cir. 1997). We have not yet determined whether dismissal for failure to state a claim pursuant to § 1915(e)(2)(B )(ii) is reviewed for abuse of discretion, see Schlicher v. Thomas , 111 F.3d 777, 779 (10th Cir. 1997) (applying abuse of discretion standard to review a dismissal under § 1915(d), the precursor to § 1915(e)(2)), or de novo, similar to the same s tandard as a Rule 12(b)(6) “failure to state a claim.” Because the district c ourt’s decision was based on failure to state a claim, rather than frivolousness , and relied on both § 1915 and Rule 12(b)(6), we will apply the Rule 12(b)(6) de n ovo standard in this case. Cf. McGore v. Wrigglesworth , 114 F.3d 601, 604 (6th Cir. 1997) (concluding dismissals under new § 1915(e)(2) and 28 U.S.C. § 1 915A should be reviewed de novo). Plaintiff’s complaint did not reveal the nature of the hearing in question, what was allegedly omitted from the transcripts, why the omission is necessary to decide his habeas petition or how the alleged om issions or inaccuracies in his-4-

transcript adversely affected him. Further, althou gh the district court liberally construed the complaint as seeking relief under § 1 983, plaintiff failed to allege any violation of a constitutional or other right orto specify any cause of action. Nevertheless, although we have held that a districtcourt may dismiss sua sponte a pro se complaint for failure to state a claim, se e McKinney v. Oklahoma , 925 F.2d 363, 365 (10th Cir. 1991), we have also he ld that “[s]uch a dismissal is appropriate only where it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing [him] an opportu nity to amend [his] complaint would be futile.” Whitney v. New Mexico , 113 F.3d 1170, 1173 (10th Cir. 1997) (quotations omitted); McKinney , 925 F.2d at 365. Here, we cannot conclude that it is patently obviou s that plaintiff could not prevail on the facts alleged and allowing him an op portunity to amend his complaint would be futile. See Forte v. Sullivan , 935 F.2d 1, 3 (1st Cir. 1991) (holding that civil rights claim that court reporte r altered trial transcript was not “indisputably meritless” and should not have been d ismissed under § 1915 without giving plaintiff notice and an opportunity to amend his complaint). Some courts have recognized § 1983 claims based on alleg ations that a court reporter altered criminal trial transcripts. See id. at 3 (claim not “indisputably meritless”);
Curro v. Watson , 884 F. Supp. 708, 719, 724 (E.D.N.Y. 1995) (recog nizing § 1983 due process claim to reasonably accurate cri minal trial transcript based-5-

on allegation that court reporters deliberately alt ered transcripts, but dismissing on qualified immunity grounds), aff’d , No. 95-2327, 1996 WL 19172, at **1 (2d Cir. Jan. 16, 1996) (unpublished disposition); Odom v. Wilson , 517 F. Supp. 474, 476 (S.D. Ohio 1981) (allegation that court re porter who deliberately watered-down charge to jury states cognizable § 198 3 claim); see also Antoine v. Byers & Anderson, Inc. , 508 U.S. 429, 436-37 (1993) (holding that court reporters are not absolutely immune from damages li ability); McCullough v.
Horton , 69 F.3d 918, 919 (8th Cir. 1995) (holding it was abuse of discretion to dismiss as frivolous claim that court reporter f ailed to provide inmate with transcript of his criminal trial); Gagan v. Norton , 35 F.3d 1473, 1476-77 (10th Cir. 1994) (district court erred in denying leave t o amend complaint to allege § 1983 claim that court reporters refused to prepar e transcripts, holding that qualified immunity is an affirmative defense that c an only be raised after defendants have been served). “[P]laintiff does not have a constitutional right t o a totally accurate transcript of his criminal trial.” Tedford v. Hept ing , 990 F.2d 745, 747 (3d Cir. 1993). “His constitutional rights would be violate d only if inaccuracies in the transcript adversely affected the outcome of the cr iminal proceeding.” Id. ; see also Colyer v. Ryles , 827 F.2d 315, 316 (8th Cir. 1987) (civil complaint for damages was frivolous where plaintiff was not preju diced by allegedly altered1 Moreover, plaintiff’s right to a free transcript inorder to file his habeas

petition is not unconditional. A petitioner seekin g relief under 28 U.S.C. §§ 2254 or 2255 must first demonstrate that his claim is no t frivolous and that the transcript is needed to decide the issue presented by the suit before the court is required to provide him with a free transcript. Se e United States v. MacCollom , 426 U.S. 317 (1976) (plurality) (interpreting a § 2 255 petition and 28 U.S.C. § 753(f)); Ruark v. Gunter , 958 F.2d 318, 319 (10th Cir. 1992) (applying the MacCollomanalysis to a § 2254 action). -6- transcript). 1 Plaintiff has not alleged facts indicating how th e alleged inaccuracies in his transcript prejudiced him. How ever, because “pro se litigants are to be given reasonable opportunity to remedy th e defects in their pleadings,” Hall v. Bellmon , 935 F.2d 1106, 1110 n.3 (10th Cir. 1991), the dis trict court erred in dismissing plaintiff’s complaint with prejudice, without first giving him an opportunity to amend his complaint to cure any defi ciencies. See Forte , 935 F.2d at 2, 4 (holding that pro se prisoner plaintiff, wh o failed to indicate how alleged transcript alterations prejudiced him, should have been granted leave to amend his complaint against the court reporter so as to state claim); see also McKinney , 925 F.2d at 365 (“Under Rule 12(b)(6), a plaintiff withan arguable claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a claim and an opportunity to amend the complaint before the motio n is ruled upon.”) (quoting Neitzke v. Williams , 490 U.S. 319, 329 (1989)). Because it is not patently obvious that plaintiff’s complaint fails to allege the violation of a federal right, the district court erred in dismissing it under-7-

§ 1915(e)(2)(B)(ii) and Rule 12(b)(6). On remand, plaintiff should be afforded an opportunity to amend his complaint to cure any defi ciencies. Accordingly, we VACATE and REMAND the action to the district court for further proceedings. The mandate shall issue f orthwith.

Entered for the Court

David M. Ebel Circuit Judge