661 F.2d 1206 (11th Cir. 1981), 81-7005, Bonner v. City of Prichard, Ala.

Docket Nº:81-7005.
Citation:661 F.2d 1206
Party Name:Larry BONNER, Plaintiff-Appellant, v. CITY OF PRICHARD, ALABAMA, et al., Defendants-Appellees.
Case Date:November 03, 1981
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1206

661 F.2d 1206 (11th Cir. 1981)

Larry BONNER, Plaintiff-Appellant,


CITY OF PRICHARD, ALABAMA, et al., Defendants-Appellees.

No. 81-7005.

United States Court of Appeals, Eleventh Circuit

November 3, 1981

Page 1207

Reams, Tappan, Wood, Vollmer, Phillips & Killion, P.C., Patricia K. Olney (Court-appointed), Mobile, Ala., for plaintiff-appellant.

J. Randall Crane, Mobile, Ala., for defendants-appellees.

Thomas R. McAlpine, Gen. Counsel, Ala. Dept. of Corrections, Montgomery, Ala., for amicus curiae State of Ala.

Appeal from the United States District Court for the Southern District of Alabama.


GODBOLD, Chief Judge:

This is the first case to be heard by the United States Court of Appeals for the Eleventh Circuit, established October 1, 1981 pursuant to the Fifth Circuit Court of Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995, and this opinion is the first to be published by the Eleventh Circuit. Under P.L. 96-452 the United States Court of Appeals for the Fifth Circuit was divided into two circuits, the Eleventh and the "new Fifth." This court, by informal agreement of its judges prior to October 1, 1981, confirmed by formal vote on October 2, 1981, has taken this case en banc to consider what case law will serve as the established precedent of the Eleventh Circuit at the time it comes into existence. We hold that the decisions of the United States Court of Appeals for the Fifth Circuit (the "former Fifth" or the "old Fifth"), as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit.

Section 9 of the Act provides for the handling of cases that prior to October 1, 1981 had been filed with the former Fifth Circuit. Subparagraphs (1) and (2) thereof provide:

(1) If the matter has been submitted for decision, further proceedings in respect

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of the matter shall be had in the same manner and with the same effect as if this Act had not been enacted.

(2) If the matter has not been submitted for decision, the appeal or proceeding, together with the original papers, printed records, and record entries duly certified, shall, by appropriate orders, be transferred to the court to which it would have gone had this Act been in full force and effect at the time such appeal was taken or other proceeding commenced, and further proceedings in respect of the case shall be had in the same manner and with the same effect as if the appeal or other proceeding had been filed in such court.

In the former Fifth Circuit a case filed prior to October 1, 1981 was "submitted for decision" to that court within the meaning of § 9 of the Act on the date it was heard by an oral argument panel of that court or fully decided by a three judge screening panel without oral argument. Thus a case designated before October 1, 1981 for assignment to an oral argument calendar and scheduled for hearing after October 1, 1981 would not be "submitted for decision" to the old Fifth Circuit but, in due course, would be submitted to the Eleventh or the new Fifth. During the routine screening of this case in September 1981 the initiating judge assigned the case for oral argument. Since the case was not decided by a screening panel, and there were no oral argument panels sitting before October 1 to which it could be submitted, it was not (and could not be) "submitted for decision" before October 1. The appeal arose in the geographical confines of the Eleventh Circuit, so that, under § 9(2) of the Act, it became an Eleventh Circuit case to be submitted to and decided by that court, and it has been properly voted for hearing en banc by the members of that court.

I. History of the case

During his pretrial confinement at the Prichard (Alabama) City Jail, appellant Larry Bonner, proceeding in forma pauperis, filed a pro se action under 42 U.S.C.A. § 1983 (West 1974) against the City of Prichard and city officials. Counsel was appointed for him. The amended complaint set forth six causes of action. Under the first five causes of action Bonner sought declaratory and injunctive relief for various alleged violations of the Constitution of the United States and the laws of Alabama allegedly perpetrated at the city jail against Bonner and those similarly situated. The sixth cause of action alleged that Bonner was denied proper medical treatment following injuries he sustained at the jail and that he was thereafter assaulted by a jail guard with a fire extinguisher. He claimed one million dollars in damages under this count.

Before the defendants filed an answer to the amended complaint the magistrate assigned to make recommendations in the case to the district judge made a sua sponte recommendation that the case be dismissed without prejudice. The magistrate supported his recommendation by noting that:

1. Bonner was no longer imprisoned at Prichard jail; 1

2. Bonner's claim would not be barred because the governing statute of limitations was tolled until Bonner completes serving a ten year sentence for robbery;

3. Transporting Bonner and other witnesses to court to prosecute the case would be a security risk to guards and public and burden and expense upon prison administrators;

4. Based upon the experience of the district court 2 many suits of this nature are filed by prisoners who desire a brief respite in court away from prison routine;

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5. Based on the experience of the court many such cases are abandoned when the plaintiffs are released;

6. Bonner's disadvantage in prosecuting his case while in prison will terminate upon his release;

7. The Fifth Circuit has urged district courts to take "imaginative and innovative" steps in dealing with prisoner § 1983 cases; 3

8. Fed.R.Civ.P. 27 and identical state procedures can be invoked if necessary to preserve the testimony of witnesses;

9. To merely stay the action until Bonner is released from custody would clutter the files of the court.

The magistrate conducted no hearing with respect to his recommendation and the supporting notations. Bonner filed objections to the magistrate's recommendations. The district judge, presumably adopting the magistrate's recommendation, ordered the case dismissed without prejudice to its being refiled either when Bonner was returned to the Prichard jail or was released from incarceration.

On appeal Bonner only challenges the dismissal of the sixth cause of action. 4

II. The choice of governing law

Under the established federal legal system the decisions of one circuit are not binding on other circuits. "(I)t is common knowledge that the decisions of the...

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