779 F. 2d 49 - Lucinda Baker v. Martion Correctional Institute et al.

BEFORE: ENGLE and KEITH, Circuit Judges; and JOINER, District Judge*.

Defendant Spare moves for a remand on appeal from the district court's judgment in this civil rights case. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and Baker's brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Baker filed a complaint alleging that the defendants at the Marion Correctional Institute in Marion, Ohio subjected her to sexual harassment on her job. She also included a pendent state law claim against Dr. Spare, a psychiatrist who allegedly revealed confidential information to the prison officials. Her attorney was disbarred by the state from representing her, and the district court ordered her to obtain new counsel within thirty days. When she failed to obtain new counsel, Dr. Spare moved for a dismissal with prejudice. The district court endorsed the order as granted. Baker filed a notice of appeal through new counsel. The court then entered another order dismissing the case without prejudice.

The endorsed order granting Dr. Spare's motion was not appealable because it was not set out on a separate document in accordance with Rule 58, Federal Rules of Civil Procedure. The order dismissing the entire case without prejudice is the final order in this case. Although the notice of appeal from the dismissal without prejudice was premature, Rule 4(a)(2), Federal Rules of Appellate Procedure provides that the notice of appeal shall be treated as filed after the entry of the order and on the day thereof. Therefore, this appeal is properly before the Court.

Dr. Spare moves to remand this case to the district court. He acknowledges Baker's allegations that she never received notice at her Florida residence of the district court's order to obtain new counsel. Moreover, it is questionable that a case can be dismissed for failure to obtain new counsel, because a plaintiff could proceed pro se. In any event, Baker has now retained new counsel who can present her case. So the case should be remanded for further proceedings.

The motion to remand is granted. The judgment of the district court is vacated and the case is remanded under Rule 9(d)(4), Rules of the Sixth Circuit, for further proceedings.