Pro Se Duane Gerald Davis, Sr.

7904 Jody Knoll Drive Owings Mills, MD 21249 (443) 831-1188 IN THE UNITED STATES COURT APPEALS FOR THE FOURTH CIRCUIT

DUANE DAVIS, SR., Plaintiff, vs. STATE OF MARYLAND, Defendant Case No.: 1:12-cv-03570 GLR

INFORMAL OPENING BRIEF Pursuant to the Courts order dated March 25, 2013, plaintiff respectfully submits this Informal Brief as required under Local Rule 45. The following issues, facts, and arguments are presented for this Courts review.

ISSUE 1: The District Court should have viewed his complaint more liberally and declined to dismiss it in light of his then-pro se status.

SUPPORTING FACTS AND ARGUMENT In Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir.1965), the court established that a pro se litigant bringing a civil rights suit in forma pauperis is entitled to five procedural protections. These are:

(1) process issued and served, (2) notice of any motion thereafter made by defendant or the court to dismiss the complaint and the grounds therefor, (3) an opportunity to at least submit a written memorandum in opposition to such motion, (4) in the event of dismissal, a statement of the grounds therefor, and (5) an opportunity to amend the complaint to overcome the deficiency unless it clearly appears from the complaint that the deficiency cannot be overcome by amendment.

While Fed.R.Civ.P. 15 places leave to amend within the sound discretion of the trial court, a court must remain guided by "the underlying purpose of Rule 15 ... to facilitate decision on the merits, rather than on the pleadings or technicalities." United States v. Webb, 655 F.2d 977, 979 (9th Cir.1981); see also Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). A pro se litigant must be given leave to amend his or her complaint unless it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (Per Curiam). The rule favoring liberality in amendments to pleadings is particularly important for the pro se litigant. Presumably unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel. Indeed, the Supreme Court has held that allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (Per Curiam); see also Maurer v. Individually and as Members of Los Angeles County Sheriff's Dept., 691 F.2d 434, 437 (9th Cir.1982); Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir.1980). The requirement that courts provide a pro se litigant with notice of the deficiencies in his or her complaint helps ensure that the pro se litigant can use the opportunity to amend effectively. Without the benefit of a statement of deficiencies, the pro se litigant will likely repeat previous errors. This is equally true for the pro se litigant who amends his complaint at his own instance without any guidance from the court. Amendments that are made without an understanding of underlying deficiencies are rarely sufficient to cure inadequate pleadings. While plaintiff is mindful that courts should not have to serve as advocates for pro se litigants, a statement of deficiencies need not provide great detail or require district courts to act as legal advisors to pro se plaintiffs. Rather, when dismissing a pro se complaint for failure to state a claim, district courts need draft only a few sentences explaining the deficiencies. For example, in a 42 U.S.C. Sec. 1983 action where the pro se plaintiff failed to allege that the defendant acted under color of state law, the court need

point out only that the complaint fails to state a claim because it fails to allege facts sufficient to show that the defendant acted under color of state law. As plaintiff fully sets forth in his complaint, he is a citizen of Maryland who alleges that defendants violated rights conferred upon him by the United States Constitution, Maryland State Constitution and other State and Local Laws. Plaintiff filed his claim against the defendants in the United States District Court for the District of Maryland, pursuant to 28 USC 1331 upon the raising of a federal question that involves the defendants under the color of law.

ISSUE 2: The judge exceeded his judicial discretion by dismissing the complaint without providing a rational basis for the decision.

SUPPORTING FACTS AND ARGUMENT

Plaintiff filed the required Affidavit in Support of his request to Proceed In Forma Pauperis and Waive the Filing Fees in this matter due to his indigent status. Plaintiff has filed this Affidavit the same way in other cases and in other courts wherein the court has ruled favorably on plaintiffs motion and permitted the case to proceed. The Court c hose to dismiss plaintiffs complaint without permitting him time to cure the defects appearing to have been evidenced by the Honorable Judge Russell III.

RELIEF REQUESTED

Plaintiff respectfully demands that this Court remand this case back to the District Court, to permit him to amend the defects as found that has led to the dismissal of this case on a technical error, so the merit of this action can be adjudicated properly. Plaintiff has filed no appeals in other cases in this Court. Dated this 4th of April, 2013.

Respectfully,

Duane G. Davis 7904 Jody Knoll Drive Windsor Mill, MD 21249 (443) 831-1188