Frederick T. Ray Iii v. Walter Reed, Major

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4029
FREDERICK T. RAY III,
Appellant
v.
WALTER REED, MAJOR; JOHN MASTERS, WARDEN; D. EDWARD
MCFADDEN; RAMON RUSTIN; DONALD DOUGHERTY; ROBERT WILSON;
MORGAN TAYLOR; PHILLIP WALKER; SCOTT GRAHAM; O. MILLER, LT.;
BOHN, LT.; BROOKS, SGT.; LAWSON, CPL
(D.C. Civil No. 04-cv-00810)
No. 04-4030
FREDERICK T. RAY III,
Appellant
v.
THOMAS A. MADONNA, SGT.; MCCARTHY, CPL; YANCIK, CPL; ZEPP, SGT;
FORD, CO; SOTO, CO; R. WILSON, CAPT.; WALKER, CAPT.; SERGE, LT;
BOYD, CPL; DUANE, COUNSELOR; FORBES, LT; RAMON RUSTIN,
DEPUTY WARDEN
(D.C. Civil No. 04-cv-00805)
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
District Judge: The Honorable John P. Fullam

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The Honorable A. Wallace Tashima, Senior Circuit Judge, United States Court of*
Appeals for the Ninth Circuit, sitting by designation.
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Submitted Under Third Circuit LAR 34.1(a)
May 21, 2007
Before: BARRY, CHAGARES, and TASHIMA, Circuit Judges*
(Filed: July 18, 2007 )
OPINION
BARRY, Circuit Judge
Frederick T. Ray, III, appeals from the orders of the District Court granting the
motions to dismiss his claims against various officials of the Chester County Prison. For
the reasons stated below, we will reverse and remand for further proceedings.
On March 2, 2004, Ray, proceeding pro se, filed two separate civil rights
complaints against officials at the Chester County Prison under 42 U.S.C. § 1983. Ray’s
complaint in Ray v. Reed, No. 04-4029 on appeal, alleged that prison officials shackled
and restrained him for 40 days, in violation of his substantive due process rights under
that Fourteenth Amendment. Ray’s complaint in Ray v. Madonna, No. 04-4030 on
appeal, alleged that prison officials violated his substantive and procedural due process
rights when, after he complained that pepper spray used to restrain another prisoner had
drifted into his cell, prison officials assaulted him, confiscated his legal documents, and

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injured his back, shoulder, and wrist. Subsequently, Ray alleged in Madonna, the prison
officials charged him with misconduct, held a Disciplinary Board hearing, and found him
guilty, placing him under restrictions for 45 days. According to Ray, he was not given
notice of the charges or of the hearing and was not able to present a defense or obtain
counsel.
The defendants in each case filed motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). On September 13, 2004, the District Court signed separate, but
identical, orders dismissing the complaint in each case. The orders read:
AND NOW, this 13 day of September, 2004, upon consideration ofth
Defendants’ Motion to Dismiss, to which no response has been filed,
IT IS ORDERED that the Motion is GRANTED. The complaint is
DISMISSED and the Clerk is directed to mark the case as CLOSED.
(JA 3, 4 (emphasis in originals).) Ray filed notices of appeal. Under Houston v. Lack,
487 U.S. 266 (1988), and Federal Rule of Appellate Procedure 4(c), the notices of appeal
were timely.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We
have jurisdiction under 28 U.S.C. § 1291. Our review of the orders dismissing the
complaints is plenary. Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir.
2006).
The District Court’s orders granting the motions to dismiss were not merely
cursory – or, as appellees put it, “model[s] of brevity,” Br. at 11 – but ambiguous; indeed,

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we have some difficulty in understanding how the parties can be so confident that those
motions were granted as unopposed, although appellees attempt to keep their options
open in hopes of obviating the application of Stackhouse v. Mazurkiewicz, 951 F.2d 29
(3d Cir. 1991). Id. at 11-12. The use of the phrase “upon consideration of Defendants’
Motion to Dismiss” could imply that the Rule 12(b)(6) motions had been granted –
period. On the other hand, the use of the phrase “to which no response has been filed”
could imply that the dismissals were premised upon the Eastern District of Pennsylvania’s
Local Rule 7.1(c), which states that a “motion may be granted as uncontested” if there is
no timely response, except motions for summary judgment. We simply cannot tell, and so
we will vacate the orders and remand for the District Court to explain what and why it did
what it did.
In that connection, we note that, in Stackhouse, we held that a motion to dismiss
under Rule 12(b)(6) should not be granted without an analysis of the merits of the
underlying complaint, notwithstanding local rules regarding the granting of unopposed
motions. We observed that “some cases” could be dismissed as unopposed, “particularly
if the party is represented by an attorney” or if the party failed to comply with a court’s
orders. 951 F.2d at 30. Appellees argue that Ray is an experienced pro se litigator and
direct our attention to his various lawsuits, contending that it would be fair to hold him
responsible for compliance with a court’s deadlines. If, in fact, that is what the District
Court did, we would expect the Court on remand to consider its action in light of our

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Although appellees invite us to consider the merits of Ray’s claims, we decline 1
to do so. Those claims “should in the first instance be considered substantively by
the district court.” Stackhouse, 951 F.2d at 30.
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disfavor of dismissals under Rule 12(b)(6) for purposes of sanctioning a litigant. Id.1
The orders of the District Court will be reversed. These matters will be remanded
for further proceedings consistent with this Opinion.

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