Franklin v. State of Or.

• Decision Date: 25 May 1983
• Docket Number: Civ. No. 79-634.
• Parties: Harry FRANKLIN, Plaintiff, v. STATE OF OREGON, and State Welfare Division, Defendants.
• Court: U.S. District Court — District of Oregon

563 F. Supp. 1310

Harry FRANKLIN, Plaintiff, v. STATE OF OREGON, and State Welfare Division, Defendants.

Civ. No. 79-634.

United States District Court, D. Oregon.

May 25, 1983.

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Graham M. Hicks, Miller, Nash, Yerke, Wiener & Hager, Portland, Or., for defendants Hayes, Billings, and Mekkers.

Harry Franklin, plaintiff pro se.

Dave Frohnmayer, Atty. Gen., Scott McAlister, Asst. Atty. Gen., Salem, Or., for defendant State of Or.

Daryl S. Garrettson, Yamhill County Counsel, McMinnville, Or., for defendant Yamhill County.

OPINION and ORDER

JAMES M. BURNS, Chief Judge:

This is another chapter in the Harry Franklin saga. No longer am I tempted to call it the final chapter, as desirable as that would be to me. I mention mournfully that only the finality of death — his or mine — would enable the other of us to use the term "final" in that way. And, of course, if mine comes first, I have no doubt that another judge will someday express lamentations such as these. They will be packaged and labelled, by reason of tradition, as opinions.

Some history is needed at this point.

In 1978, Franklin was convicted of burglary and assault in the Yamhill County, Oregon Circuit Court. He was sentenced to concurrent eleven and five year terms in the Oregon State Penitentiary (OSP). All of this has seemed no small injustice to Franklin. As a consequence, he has taken it upon himself to bedevil his keepers and, indirectly, this court. Cf. Green v. Camper, 477 F.Supp. 758, 759 (W.D.Mo.1979) ("Petitioner is of the apparent mind that by flooding the Court with litigation and rendering it unable to administer its docket because of the sheer volume of such frivolous and malicious filings he will cause the Court to order his release from custody."). True to his calling,¹ Franklin has filed a civil rights complaint in this court every time somebody does something he does not like. By late spring 1980 Franklin had filed thirty-seven separate cases in this court, paying the requisite fees.² On May 29, 1980, I dismissed thirty-three of these cases on my own motion before Franklin had served summonses. Franklin appealed. During the pendency of the appeal, I dismissed four more of his remaining cases. Undaunted, Franklin tendered another two dozen cases to fill the void. Except for four documents which were arguably habeas petitions, I did not allow Franklin to file these cases.

On December 7, 1981, the Ninth Circuit Court of Appeals issued an opinion affirming my dismissal in twenty-two cases but reversing in eleven cases in which it believed Franklin alleged "something more than utterly insubstantial constitutional claims." Franklin v. Oregon, 662 F.2d 1337, 1346 (9th Cir.1981).

This opinion, in part, attempts to answer the question left open in Franklin, 662 F.2d at 1340 n. 1: when may a district court dismiss a complaint filed in forma pauperis as frivolous or malicious under 28 U.S.C. § 1915(d)?

On January 12, 1982, I issued an order to carry out the court of appeals' mandate. I reinstated the eleven reversed cases and the four I had dismissed in the interim between my May 29, 1980 order and the court of appeals' opinion. I also allowed Franklin to file the rest of his cases that had accumulated in our court. This brought the "Franklin Docket" to thirty-nine separate cases. (It now stands at sixty-four).³

Franklin had paid the filing fees on the original thirty-seven cases, of which fifteen remained. However, in my January 11, 1982 order, I tentatively allowed Franklin to proceed in forma pauperis because he appeared to meet the poverty requirements of 28 U.S.C. § 1915(a). See Brown v. Schneckloth, 421 F.2d 1402, 1403 (9th Cir.), cert. denied, 400 U.S. 847, 91 S.Ct. 95, 27 L.Ed.2d 85 (1970). I then began the sisyphean task of having these cases processed. I referred the Franklin Docket to Judge Hogan in Eugene and asked attorney John Miller of Salem to consider assisting Franklin or accepting appointment as his counsel.

In February 1982, the Clerk prepared two sets of files to enable Franklin and his attorney to serve process in the cases. The sets contained copies of all relevant papers in each of the thirty-nine cases, along with the forms needed to issue summonses to all defendants named but not served. Because Franklin was proceeding in forma pauperis, all he needed to do was forward the completed forms to the U.S. Marshal, or a substitute, for service. Franklin had previously sent the court some instruction forms but these were too vague to serve their purpose. As will become apparent below, Franklin is not always sure against whom he is bringing lawsuits. See Nos. 79-988 and 79-1158, discussed infra at 1321-1322. Mr. Miller advises me that after he received these two sets of materials (in February 1982) he delivered one complete set to Franklin at OSP.

From time to time during 1982, I inquired informally of Judge Hogan and Mr. Miller as to how the cases on the Franklin Docket were progressing. Other than an occasional issuance of a summons, not much appeared to be happening. Nor could it until Franklin explained to his attorney which lawsuits he wished to pursue against which defendants.

In the fall of 1982, I visited OSP in the course of a prison conditions case I was handling. See Capps/West v. Atiyeh, 559 F.Supp. 894 (D.Or.1982) (Capps/West II). While going through the segregation and isolation building (S & I), I met and chatted briefly with Franklin.⁴ At that time (November 26, 1982), I advised Franklin that if he did not take action, e.g., serve process, in his many cases, I intended to dismiss them for want of prosecution. While Franklin complained somewhat about his attorney's performance, he did not mention any particular grievances he had against Mr. Miller. I urged Franklin to cooperate with Mr. Miller to move the cases along. Because I was unsure what the record showed, I issued an order on December 9, 1982, formally appointing Mr. Miller. That order also specified that summonses should issue in the cases on the Franklin Docket by February 15, 1983, or I would dismiss them for want of prosecution under L.R. 260-3.

On February 8, 1983, I received a phone call from Judge Hogan. At that time, he was holding an informal status conference with Mr. Miller. He told me that Franklin had lodged a complaint against Mr. Miller with the Oregon State Bar. I then advised Mr. Miller by letter, that he was no longer obliged, as an appointed attorney under 28 U.S.C. § 1915(d), to go any further with the arrangements for service of process. I did not believe that I should be the instrument by which Franklin could create a Franklin Docket with the Oregon State Bar's Office of General Counsel. I sent a copy of this letter to Franklin, explaining that it would be up to him to effect service of process by the February 15th deadline. Mr. Miller then delivered his set of the case files to Franklin.

The deadline passed. On March 9, 1983, Franklin wrote to me asking for a new attorney and an additional two-year period within which to serve process. On April 25, 1983, I received a formal motion to that effect. For reasons more fully apparent below, I deny the requests.

I

In this section I dispose of the remainder of Franklin's original thirty-seven cases.

A. Dismissal for Failure to Prosecute

Those cases for which Franklin failed to serve process are dismissed for want of prosecution. These cases include Nos. 79-634, 79-990, 79-991, 79-1051, 79-1160, and 79-1332.⁵

In Nos. 79-985, 79-896, 79-992, and 80-216, Franklin served some of the defendants. The defendants answered promptly but Franklin has taken no action in these cases since 1980. These cases too are dismissed for want of prosecution.

A trial court may sua sponte dismiss a case for failure to prosecute. Link v. Wabash R.R., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962); Tolbert v. Leighton, 623 F.2d 585, 586 (9th Cir.1980); cf. Fed.R.Civ.P. 41(b). To dismiss Franklin's cases for failure to prosecute, I must consider (1) the strength of the evidence of Franklin's dilatoriness; (2) whether I warned Franklin there was a risk of dismissal; and (3) the age of the case. Tolbert, 623 F.2d at 587.

First, in four years, Franklin has done no more than file the cases and issue summonses. In most instances he has not even done that much. This is far stronger evidence that Franklin has been deliberately dilatory than merely the unexcused absence from a pretrial conference. See id.; Anderson v. Air West, Inc., 542 F.2d 522, 525 (9th Cir.1976). Franklin has given no excuse for letting his cases lie dormant other than his incarceration. Nor could he. And Franklin's incarceration does not absolve him of the responsibility to prosecute his actions diligently. Collins v. Pitchess, 641 F.2d 740, 742 (9th Cir.1981). Though Collins was incarcerated in California's Soledad state prison, he actively prosecuted his pro se civil rights action, submitting moving papers to the court and participating in discovery. Nothing prevented Franklin from doing the same. Franklin's boredom with his original lawsuits has not cooled his litigious ardor. Since the court of appeals' opinion, Franklin has tendered for filing an additional twenty-five complaints. See Section III infra at 1328. I find that Franklin's conduct (or lack thereof) in his original lawsuits constitutes bad faith. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455, 2464, 65 L.Ed.2d 488 (1980).

Second, I personally warned Franklin on November 26, 1982, in the presence of the State's counsel, that dismissal was imminent. I reinforced that admonition by order of December 9, 1982.⁶

Third, these cases are three, and, in some instances, four years old. The court of appeals has not drawn a bright line between young and old cases. Compare Tolbert, 623 F.2d at 586 (...