Bonner v. City of Prichard, Ala., 81-7005

• Citation: 661 F.2d 1206
• Decision Date: 03 November 1981
• Docket Number: No. 81-7005,81-7005
• Parties: Larry BONNER, Plaintiff-Appellant, v. CITY OF PRICHARD, ALABAMA, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1206

661 F.2d 1206

Larry BONNER, Plaintiff-Appellant, v. CITY OF PRICHARD, ALABAMA, et al., Defendants-Appellees.

No. 81-7005.

United States Court of Appeals,

Eleventh Circuit.

Nov. 3, 1981.

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.

Before GODBOLD, Chief Judge, and RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges.

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 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 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 court of appeals for one circuit are not binding upon the courts of appeals for other circuits." 1B J. Moore, Federal Practice P 04.02(1) (1980). The various circuits differ somewhat in the extent to which they treat their own decisions as binding on themselves. Some appear at times to treat their own decisions as merely persuasive; others by rule or practice permit one panel to overrule another after prior notice to all judges of what is proposed, followed by no objection. The old Fifth followed the absolute rule that a prior decision of the circuit (panel or en banc) could not be overruled by a panel but only by the court sitting en banc. The Eleventh Circuit decides in this case that it chooses, and will follow, this rule.

The act dividing the old Fifth Circuit into two circuits did not address the issue of what body of law would be adopted or otherwise would become the body of law of either of the two circuits for cases "submitted for decision" on and after October 1, 1981. To decide this case, and later Eleventh Circuit cases, we must decide whether this court shall adopt some established body of law as its body of precedent, and if so, effective as of its coming into existence, what established body of law will be chosen. For several reasons we choose the decisions of the United States Court of Appeals for the Fifth Circuit, as that court existed on September 30, 1981, handed down by that court prior to close of business on that date. ⁵ We consider that body of law worthy for governance of legal affairs within the jurisdiction of this new circuit.

Stability and predictability are essential factors in the proper operation of the rule of law. In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), the Supreme Court states the reasons for following past decisions:

Among these are the desirability that the law furnish a clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise; the importance of furthering fair and expeditious adjudication by eliminating the need to relitigate every relevant proposition in every case; and the necessity of maintaining public faith in the judiciary as a source of impersonal and reasoned judgments.

Id. at 403, 90 S.Ct. at 1789. Our choice is strongly influenced by these considerations.

Adoption of the former Fifth Circuit precedents will maintain and promote stability and predictability in the states of Alabama, Georgia and Florida, which comprise the geographical territory of the Eleventh Circuit. Since 1866 these three states have been part of the former Fifth Circuit, which in addition has included Texas, Louisiana, Mississippi and the Canal Zone. During this extensive span of time the decisions of the Fifth Circuit have been precedents applied in the states that now constitute the Eleventh Circuit. District courts and bankruptcy courts in these states have rendered the initial decisions in many of the cases decided by the former Fifth Circuit. Judges presently on this court, who among them have 265 years of federal judicial service in the Fifth...