Tyree, Jr. v. Fair ( 1993 )

March 9, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1742
No. 92-1743
No. 92-1744
No. 92-1745
No. 92-1746
WILLIAM M. TYREE, JR.,
Plaintiff, Appellant,
v.
MICHAEL V. FAIR, ET AL.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Cyr, Circuit Judges.
William M. Tyree, Jr. on brief pro se.
Nancy Ankers White, Special Assistant Attorney General, and
Richard C. McFarland, Supervising Counsel, Department of Correction,
on Memorandum of Law in Support of Motion for Summary Disposition, for
appellees.
Per Curiam. Appellant, William M. Tyree, Jr.,
currently is imprisoned in the Cedar Junction Massachusetts
Correctional Institute; he is serving a life sentence for
first-degree murder. On December 27, 1988, appellant was
transferred from Cedar Junction to the Old Colony
Correctional Center where he spent twenty-seven days in the
administrative segregation unit. On February 8, 1989,
appellant filed five separate complaints in the Massachusetts
district court concerning his prison status and his transfer
to and residence at Old Colony. The district court dismissed
all five actions for lack of prosecution. A brief
description of each action follows.
I.
1. Appellant alleges that when he was transferred
to Old Colony, prison officials refused to allow him to use
his television set with speakers; instead, he was required,
under regulations apparently promulgated in 1983, to use
earplugs or headphones. He claims that this rule was an ex
post facto violation of the United States Constitution
because appellant had been allowed the use of a television
set with speakers since the beginning of his incarceration in
1979. He also maintained that his civil rights were
infringed on the ground that the regulation did not contain
an exception that allowed hearing-impaired prisoners to use
television sets with speakers. In this action, the
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defendants were served with process. They filed their answer
in May 1989.
2. Because appellant had enemies at Old Colony and
because Old Colony lacked a protection unit, appellant avers
that he was forced into administrative segregation for the
twenty-seven days he spent at Old Colony. During this time,
appellant claims that he was denied proper medical care.
Specifically, prison officials allegedly refused to allow
appellant to bring with him two knee braces he needed for
support. He further alleged that he did not receive
sufficient daily exercise and did not have access to a
"universal" weight machine. In addition to these complaints,
appellant states that the prison officials refused to ensure
that all of his mail was being sent out, that the transfer
made it difficult for him to receive visitors and that, after
"punching out" two glass windows, appellant was placed in the
"nut room" and threatened with the possibility of being
chained to the bed. None of the defendants named in this
action were served with process.
3. Appellant states that while in the segregation
unit he did not have access, as did the prisoners in the
general population, to a footlocker in which to store his
personal belongings. He also claims that defendants used a
two-way window and an electronic eavesdropping sound gun to
monitor all of appellant's visits with outsiders. As in the
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previously described action, appellant failed to serve
defendants with his complaint.
4. In the fourth complaint, appellant alleges that
in 1985 he was transferred to a higher security prison as the
result of allegations he had made concerning employee
discrimination in the Massachusetts prison system. Due to
his involvement in this matter, appellant asserts that he
became known as a legal and political troublemaker. He
charges that he made defendants aware of the fact that due to
the above allegations, he had enemies at Old Colony. He
again asserts that he needed to be placed in administrative
segregation at Old Colony -- the only place where he felt
safe. All of the defendants were served with process in this
action and they filed answers in May 1989.
5. Appellant claims that under a prison
regulation, an inmate who refuses to transfer to a lower
security prison loses work privileges, is not permitted to
attend vocational, educational and other institutional
programs, and is not allowed to attend church. Appellant
asserts that he lost the above privileges due to his refusal
to transfer to a medium security prison. In this action,
appellant served the defendants and in 1990 sent requests for
admissions to them.
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II.
On March 11, 1992, the district court issued
notices in all five actions pursuant to Local Rule 41.1.
This rule provides:
(a)(1) Whenever in any civil action
the clerk shall ascertain that no
proceeding has been docketed therein for
a period of ONE (1) year, he shall then
mail notice to all persons who have
entered an appearance in such a case
that, subject to the provisions of
subsection (a)(3), the case will be
dismissed without further notice thirty
(30) days after the sending of the
notice.
In response to this notice, appellant requested an eight-
month extension of time. He based this request on his
assertions that since the filing of the five actions in 1989
the Department of Corrections (DOC) had confiscated
appellant's legal papers and had failed to return them to
appellant, had opened appellant's legal mail, had denied him
access to the law library during "lock downs" and had made it
difficult for him to obtain typewriting materials.
The district court denied appellant's motion and
dismissed the five actions. The court accepted as true
appellant's allegation that his legal files had been
confiscated. It nonetheless found that this did not
"satisfactorily explain" appellant's inaction and his failure
to communicate with the district court.
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III.
A district court's sua sponte power to dismiss an
action for want of prosecution is "'an inherent power,'
governed not by rule or statute but by the control
necessarily vested in the courts to manage their own affairs
so as to achieve the orderly and expeditious disposition of
cases." Link v. Wabash R.R. Co., 370 U.S. 626, 630-631
(1962) (footnote omitted). "[T]his power is necessary to
prevent undue delays in the disposition of pending cases,
docket congestion, and the possibility of harassment of a
defendant." Zavala Santiago v. Gonzalez Rivera, 553 F.2d
710, 712 (1st Cir. 1977). However, such dismissals are
"drastic sanctions, which should be employed only when the
district court, in the careful exercise of its discretion,
determines that none of the lesser sanctions available to it
would truly be appropriate." Id. (footnote omitted).
We review sua sponte dismissals based on lack of
prosecution for abuse of discretion. Enlace Mercantil
Internacional, Inc. v. Senior Indust., Inc., 848 F.2d 315,
317 (1st Cir. 1988). In conducting this review, we must
examine all relevant circumstances. Asociacion de Empleados
del Instituto de Cultura Puertorriquena v. Rodriguez Morales,
538 F.2d 915, 916 n.2 (1st Cir. 1976). Among the pertinent
factors we consider are the history of the litigation, the
length and type of delay, the nature of the underlying
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claims, the possible prejudice to defendants and the presence
of an adequate excuse for a plaintiff's inaction. See
Carribbean Transp. Sys., Inc. v. Autoridad de las Navieras,
901 F.2d 196, 197 (1st Cir. 1990).
Turning to the case at hand, we first note that in
two of the actions, appellant never made service of process
on the defendants named in the complaints. This in itself
suffices for a finding of lack of prosecution. See id. In
two out of the three actions in which service of process was
accomplished, appellant took no steps to further the progress
of the actions after the answers were filed in 1989. In the
one action where the proceedings did advance beyond the
filing of the defendants' answers, appellant sent requests
for admissions to the DOC in July 1990. Thus, by the time
the Local Rule 41.1 notice was sent in March 1992, appellant
had done nothing in four of the cases for almost three years
and in the fifth case for well over one year.
A clear record of delay "measured in years," as in
the case at hand, will support a dismissal for want of
prosecution. See Cosme Nieves v. Deshler, 826 F.2d 1, 2 (1st
Cir. 1987). Appellant asserts on appeal that he did
"everything possible" to alert the DOC and the district court
to the problem of the missing legal files and interference by
prison officials with his personal papers and mail.
Specifically, he states that he filed a protective order in
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the district court in 1990. To support his position,
appellant refers to the first addendum to his brief. While a
review of the material included in addendum #1 indicates that
appellant pursued his complaints within the prison system,
there is no evidence that appellant contacted the district
court in any way to alert it to his difficulties. The only
reference to a protective order is in papers concerning
another action filed by appellant in the district court.
We find appellant's excuse inadequate to explain
such long delays in the prosecution of these actions. In
light of appellant's knowledge in 1989 that he would have
difficulty in pursuing his complaints due to defendants'
alleged obstructive conduct, he was in a position to appeal
to the district court for relief. See Medeiros v. United
States, 621 F.2d 468, 470 (1st Cir. 1980) (where plaintiff
knew about unavailability of expert witness for approximately
five months prior to trial date and was, as a result, unable
to proceed on day of trial, dismissal warranted); Zavala
Santiago, 553 F.2d at 713 (initial burden to go forward is on
plaintiff and failure to alert district court to problems is
one factor supporting dismissal for failure to prosecute).
This is not a case where, although a significant amount of
time had passed between the filing of the complaint and the
dismissal for want of prosecution, the parties diligently
acted to advance the case. See Richman v. General Motors
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Corp., 437 F.2d 196, 199 (1st Cir. 1971) (where parties
actively pursued action, outright dismissal too harsh a
sanction). Rather, appellant essentially did nothing.
In light of his ability, as the district noted and
appellant himself acknowledges, to pursue his other federal
actions, his inertia in these cases becomes less supportable.
Although appellant's conduct cannot be called contumacious,
it is plain that he has unreasonably delayed in advancing his
causes of action and in applying to the district court for
relief. Indeed, his request for an eight-month extension of
time in response to the notice of dismissal only highlights
the likelihood that appellant will continue to act in a
dilatory manner. In such a situation, dismissal is not too
harsh a sanction. See Medeiros, 621 F.2d at 470-71 (delay by
plaintiff in availing himself of discovery, although not
"contumacious," is a sufficient ground for dismissal). We
also note that the merits of appellant's underlying claims
are questionable and that the long pendency of this action
has likely resulted on prejudice to defendants. Thus, we
cannot say that the district court abused its discretion in
dismissing the complaints under Fed. R. Civ. P. 41(b) and
Local Rule 41.1.
The judgments of the district court are affirmed.
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