McKnight v. Blanchard

• Decision Date: 08 February 1982
• Docket Number: No. 81-1166,81-1166
• Citation: 667 F.2d 477
• Parties: Hershel Hiram McKNIGHT, Plaintiff-Appellant, v. C. H. BLANCHARD, Sheriff of Lubbock County, Texas, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 477

667 F.2d 477

Hershel Hiram McKNIGHT, Plaintiff-Appellant, v. C. H. BLANCHARD, Sheriff of Lubbock County, Texas, et al Defendants-Appellees.

No. 81-1166

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Feb. 8, 1982.

Hershel Hiram McKnight, pro se.

John T. Montford, Criminal Dist. Atty., Yvonne Faulks, Asst. Dist. Atty., Lubbock, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, GARZA and TATE, Circuit Judges.

TATE, Circuit Judge:

We vacate an order indefinitely staying trial of this action, and we remand for further proceedings.

The plaintiff McKnight, then a prisoner in the Lubbock County Jail, filed suit against the sheriff, district attorney and jail, praying for damages, injunctive relief, and a transfer to an adequate medical facility. The pro se pleadings, construed favorably, attempt to assert claims under 42 U.S.C. § 1983 for deprivation of constitutional rights as well as under the Eighth Amendment. After suit was filed, McKnight was transferred to the Texas Department of Corrections. A series of motions were filed by the opposing parties. The district court granted a motion by the defendants to compel McKnight to answer interrogatories and a request for admission; however, five days later the trial court entered an order that denied pending motions by McKnight, and, without explanation, stated: "Further, the plaintiff is advised that this case will not be set for trial until he has been released from incarceration, and at that time he will advise the court of the name of his attorney." McKnight filed a notice of appeal within thirty days, cf., Fed.R.App.P. 4(a)(1), of the date of entry of the order that denied his motions and advised him of the continuance of this case until he was released from prison.

Appealability

The primary issue presented is whether we have appellate jurisdiction to review the order from which McKnight appealed. The defendant state officials correctly point out that, on its face, the order is neither an appealable final decision disposing of the action, 28 U.S.C. § 1291, nor an interlocutory decision either specified as appealable by section 1292(a) or else properly certified by the district court for appealability (as involving a controlling question of law, etc.) under section 1292(b).

The order appealed from indefinitely continued the proceedings until McKnight's release from prison. McKnight points out in his brief (without factual dispute by the defendants) that he is presently serving a seven-year sentence in state prison, with a federal detainer to complete a federal sentence that might involve an additional seven years in prison. He argues that the order continuing the trial of his case for a total of fourteen years will make it impossible to produce the present witnesses in his behalf and will effectively deprive him of his day in court.

Under these circumstances, the order is appealable by reason of the "death knell" doctrine, whereby an order is held to be appealable when the effect of the denial of an immediate appeal of collateral orders would effectively deny the litigants their day in court. Gillespie v. United States Steel Corporation, 379 U.S. 148, 152-55, 85 S.Ct. 308, 311-12, 13 L.Ed.2d 199 (1964); 15 Wright, Miller & Cooper, Federal Practice and Procedure, § 3912 (1976). As the treatise notes, the "most general cases (under the death knell doctrine) involve orders that formally purport to leave matters open, but that operate in combination with surrounding facts to make it impossible to pursue the matter further." Id., § 3912 at p. 501. ¹

The Eighth Circuit held that an order virtually identical to the present (staying indefinitely all proceedings in a civil action until the plaintiff was released from prison) was appealable for death knell reasons-to "deny even the bare opportunity to process his claim for an indefinite number of years could well render the legal process meaningless for the plaintiff." Peterson v. Nadler, 452 F.2d 754, 756 (8th Cir. 1971). Similarly, this court held to be appealable an order indefinitely staying Section 1983 employment discrimination litigation until completion of Title VII administrative proceedings in the related but independent Title VII claim being processed at the time by the Equal Employment Opportunity Commission. Hines v. D'Artois, 531 F.2d 726, 729-32 (5th Cir. 1976). We there stated, "when a plaintiff's action is effectively dead, the order which killed it must be viewed as final. Effective death should be understood to comprehend any extended state of suspended animation." Id. at 531 F.2d at 730.

The present order indefinitely continuing the action is, therefore, appealable and reviewable by this court.

The Merits of the Order Indefinitely Continuing the Action

The district court has a general discretionary power to stay proceedings before it in the control of its docket and in the interests of justice. Nevertheless, stay orders will be reversed when they are found to be immoderate or of an indefinite duration. See Hines, supra, 531 F.2d at 733, Dellinger v. Mitchell, 442 F.2d 782, 786 (D.C.Cir.1971); McSurely v. McClellan, 426 F.2d 664, 671 (D.C.Cir.1970). In Landis v. North American Co., 299 U.S. 248, 257, 57 S.Ct. 163, 167, 81 L.Ed. 153 (1936), the Supreme Court held that a "stay is immoderate and hence unlawful unless so framed in its inception that its force will be spent within reasonable limits, so far at least as they are susceptible of prevision and description." In the present case, the stay of McKnight's case is indefinite, but it may last for seven years or longer. The trial court gave no reason for such a protracted stay, nor did it "weigh competing interests and maintain an even balance" in ordering the stay. Landis, supra, 299 U.S. at 255, 57 S.Ct. at 166.

Accordingly, we vacate the stay or continuance of proceedings ordered as an abuse of discretion. ²

The Other Issues: Reviewable ?

In addition to appealing the indefinite stay, the plaintiff McKnight also appeals from the rulings on certain other motions specified in the same order. The defendant-appellee state officials request that, if we do entertain jurisdiction of this appeal, we determine all other issues raised thereby, in order to shorten and expedite the litigation.

Without discussion, the Eighth Circuit in Peterson, supra, under similar factual circumstances, assumed that, once it had jurisdiction to review the indefinite stay order as "final" in effect, it also had appellate jurisdiction (as in the case of other appealable final judgments) to review interlocutory orders preceding the final judgment. See Peterson, supra, 452 F.2d at 757-58. Although we have held that an appellate court that has jurisdiction over an interlocutory order concerning injunctive relief may reach and decide other aspects of the order even though the orders would not be reviewable independently by interlocutory appeal, Myers v. Gilman Paper Corporation, 544 F.2d 837, 847 (5th Cir.), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977); Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1091 (5th Cir. 1973), the question whether appellate review is limited to the appealable order alone once that order is found to be "final" under the death knell doctrine, does not appear to have been determined. ³

Professor Moore acknowledges that the courts of appeal are not without power to review otherwise unappealable orders once jurisdiction is obtained either through the existence of a statutorily appealable interlocutory order or an order held to be reviewable through a "practical" construction of the finality requirement. See 9 J. Moore, Federal Practice P 110.25(1), P 110.12 (2d ed. 1980). Nevertheless, Moore states:

Even where an interlocutory order such as an injunction has been properly appealed and other incidental orders or questions non-appealable in themselves are sought to be reviewed, it must be remembered that the appellate court will usually review only that part of the order which relates to the injunctive relief afforded or denied and only those questions basic to and underlying the specific order which supports the appeal.

Id. at P 110.25(1) (emphasis supplied) (footnote omitted). But cf., Abney v. United States, 431 U.S. 651, 662-63, 97 S.Ct. 2034, 2042, 52 L.Ed.2d 651 (1977); MacKethan v. Peat, Marwick, Mitchell & Company, 557 F.2d 395, 396 (4th Cir. 1977). We have held that, at least as far as other interlocutory orders are raised in connection with injunction orders properly before us under 28 U.S.C. § 1292(a), our usual reluctance to consider further interlocutory appeals is based on "orderly judicial administration" and not jurisdiction. Mercury Motors, supra, 475 F.2d at 1091.

In the absence of contest of the issue, and without intending to hold that in all cases of death knell appealability the jurisdiction to review the death knell order includes other interlocutory orders contained in the judgment, we will, as did Peterson, assume that, under present circumstances, the appeal has brought before us connected issues that, if not resolved, will immediately result in further appeals and further indefinite prolongation of the litigation. Cf. Florida v. United States, 285 F.2d 596 (8th Cir. 1960) (non-appealable interlocutory orders entered subsequent to an appealable order are not open for consideration upon appeal).

The Other Issues

Accordingly, we proceed to review the other issues raised by this appeal:

1. Denial of Motion for a Speedy Trial

The district court denied McKnight's motion for a "speedy trial" because no such right exists in a civil case. If his pro se motion can be liberally construed as a request for a fixing, preferential or otherwise, he may re-urge it upon the remand.

2. Order to Answer Written Interrogatories

On November 20, 1980, the defendants served on McKnight by mail some 24...