Manis v. Sterling, 88-1463
| Decision Date | 02 December 1988 |
| Docket Number | No. 88-1463,88-1463 |
| Citation | 862 F.2d 679 |
| Parties | Michael David MANIS, Appellant, Roy D. Forshee and Ronnie Dethrow v. Peter STERLING, Sidney Pearson and Robert Godfrey, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thomas M. Utterback, St. Louis, Mo., for appellant.
Deborah Neff, Asst. Atty. Gen., Jefferson City, Mo., for appellees.
Before HEANEY, BOWMAN and MAGILL, Circuit Judges.
The question presented in this appeal is whether the District Court 1 erred in dismissing plaintiffs' second amended complaint pursuant to Fed.R.Civ.P. 41(b). We affirm.
Plaintiffs Michael David Manis, Roy D. Forshee, and Ronnie Dethrow are prisoners confined within the Missouri Department of Corrections and Human Resources. In their operative complaint plaintiffs allege that public defenders Peter Sterling, Robert Godfrey, and Sidney Pearson conspired with a prosecuting attorney and several state judges to effect the improper disposition of plaintiffs' respective state actions for post-conviction relief, in violation of 42 U.S.C. Sec. 1983. The District Court construed plaintiffs' complaint to be an attack upon the validity of their present confinement and underlying convictions. It ruled that plaintiffs must litigate such attacks "through the federal habeas corpus process[,]" stayed plaintiffs' lawsuit "pending disposition of plaintiffs' applications for writs of habeas corpus[,]" and requested plaintiffs to keep it "informed as to the progress of their habeas corpus actions." Manis v. Sterling, No. 85-2276-C(5), slip op. at 2-3 (E.D. Mo. Apr. 29, 1987). When it became apparent some nine months later that plaintiffs continued to maintain the view that they were entitled to proceed to trial on their Sec. 1983 claims without first availing themselves of their federal habeas corpus remedy, defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 41(b). The District Court granted defendants' motion in a final order entered February 17, 1988.
We affirm the final order of the District Court as to plaintiffs Forshee and Dethrow because they have not timely appealed from that order and are therefore bound by it. On June 28, 1988 Forshee and Dethrow filed in this Court a motion for leave to file an out-of-time appeal, informing us that they had been omitted from plaintiff Manis's timely filed notice of appeal "as a result of clerical error[.]" We must deny the motion. This Court has jurisdiction over only those parties specified in a timely notice of appeal; further, would-be appellants' motion is untimely and we have no power to extend the time within which such motions must be filed. See Fed.R.App.P. 3(c), 4(a)(5), 26(b); Torres v. Oakland Scavenger Co., --- U.S. ---- 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). Because Forshee and Dethrow failed to properly invoke this Court's jurisdiction, we have no power to review the District Court's final order as it pertains to them.
We affirm the final order of the District Court as to plaintiff Manis on a different ground from that urged upon us by respondents and relied upon by the District Court. As mentioned, the District Court ruled that Manis must litigate his present claims in the context of a federal habeas corpus action before seeking damages from defendants under Sec. 1983. 2 We need not reach this issue because we find that Manis fails to allege conspiracy with the specificity required to withstand a motion to dismiss. The District Court found that the second amended complaint alleges conspiracy with sufficient specificity. Manis, slip op. at 1-2. Inasmuch as this determination is a legal one, our review is plenary. We may affirm a judgment on any ground fairly supported by the record. See, e.g., I.S Joseph Co. v. J. Lauritzen A/S, 751 F.2d 265, 266 (8th Cir.1984).
Manis's claims are contained in Counts III and IV of the second amended complaint. In these counts, Manis alleges that Godfrey assigned Sterling to represent him in two actions for state post-conviction relief and that Sterling and Godfrey conspired with several state-court judges to delay prosecution of those actions. Allegations that a public defender has conspired with judges or other state officials to deprive a prisoner of federally protected rights may state a claim under Sec. 1983. Tower v. Glover, 467 U.S. 914, 923, 104 S.Ct. 2820, 2826, 81 L.Ed.2d 758 (1984). Allegations of conspiracy,...
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