Marshall v. Sielaff, 73-1630.
| Decision Date | 27 February 1974 |
| Docket Number | No. 73-1630.,73-1630. |
| Citation | 492 F.2d 917 |
| Parties | Clarence MARSHALL, Jr., Appellant, v. Allyn R. SIELAFF et al. |
| Court | U.S. Court of Appeals — Third Circuit |
R. Stanton Wettick, Jr., Pittsburgh, Pa., for appellant.
Israel Packel, Atty. Gen., Donetta W. Ambrose, Asst. Atty. Gen., Pittsburgh, Pa., for appellee.
Before ADAMS and ROSENN, Circuit Judges and SHERIDAN, District Judge.
This is an appeal from an order of the district court for the Western District of Pennsylvania denying in part appellant's motion for a writ of habeas corpus ad testificandum and granting dismissal of his action for lack of prosecution.
This civil rights action was initiated in June 1972 to secure redress for various allegedly unconstitutional actions by the defendants. Appellant, Clarence Marshall, Jr., an inmate incarcerated at the State Correctional Institution at Graterford, Pennsylvania, filed a complaint under 42 U.S.C.A. § 1983 against certain prison officials and medical personnel at the State Correctional Institution at Pittsburgh, Pennsylvania. In his complaint, appellant made several allegations of violations of his constitutional and civil rights, including the claim that he had been subjected to medical mistreatment while previously incarcerated at the State Correctional Institution at Pittsburgh.1 Specifically, the appellant claims that he injured his elbow, which required medical attention and an operation, which were refused.
Prior to the date set for trial, appellant filed a motion for a writ of habeas corpus ad testificandum for the appearance of five inmates (including appellant). The district court granted the writ in part, ordering the appearance of the appellant and Rayford Smith, a witness incarcerated at the State Correctional Institution at Pittsburgh. The court denied the motion for the writ as to the other three witnesses — Walter P. McGough, Foster Thomas and Hezekiah Thomas, all of whom were incarcerated at the State Correctional Institution at Graterford — on the ground that the court had no jurisdiction in a civil case to issue such a writ for persons confined outside the territorial limits of the Western District of Pennsylvania.2
On the date set for trial, appellant filed a motion for reconsideration of the denial of the writ as to the three inmates at Graterford. At this time, appellant's counsel advised the district court that these witnesses were essential and that appellant would not proceed with the trial in their absence. Counsel had advised appellant to proceed even if the court denied his motion for reconsideration, because in counsel's opinion this was the "proper procedure." Appellant refused to proceed. The defendants moved to dismiss the action for failure to prosecute. After hearing oral argument on the motions, the court adjourned the hearing to take them under consideration. The court thereafter denied appellant's motion for reconsideration and granted defendants' motion to dismiss for lack of prosecution. The district court based its denial on the ground that it lacked jurisdiction to issue a writ of habeas corpus ad testificandum for persons confined outside the territorial limits of its district, and added that even if the court had the power to issue the writ, it would have been discretionary and, under the circumstances of this case, the court would have refused to issue it.
Under Rule 41(b) of the Federal Rules of Civil Procedure, as well as under the inherent power of the court, a case may be dismissed with prejudice for want of prosecution. Dismissal is a harsh remedy and should be resorted to only in extreme cases; the policy of the law is to favor the hearing of a litigant's claim upon the merits. Davis v. Operation Amigo, Inc., 10 Cir. 1967, 378 F.2d 101, 103. Nevertheless, the authority to dismiss for lack of prosecution, both on defendants' motion and sua sponte, is an inherent ". . . control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash Railroad Co., 1962, 370 U.S. 626, 630-631, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734. Thus, the scope of appellate review of an order of dismissal is extremely narrow, confined solely to whether the trial court has abused its discretion. Dyotherm Corp. v. Turbo Machine Co., 3 Cir. 1968, 392 F.2d 146; Theilmann v. Rutland Hospital, Inc., 2 Cir. 1972, 455 F.2d 853. No precise rule can be laid down as to what circumstances justify a dismissal for failure to prosecute, but the procedural history of...
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...Some courts apply narrow review as well to a trial judge's grant of a dismissal for failure to prosecute, see Marshall v. Sielaff, 492 F.2d 917, 918 (3d Cir.1974); Theilmann v. Rutland Hospital, Inc., 455 F.2d 853, 855 (2d Cir.1972), whereas others conduct a more exacting review in that cir......
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...Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir.1984), cert. denied 470 U.S. 1007, 105 S.Ct. 1368, 84 L.Ed.2d 387 (1985); Marshall v. Sielaff, 492 F.2d 917, 919 (3rd Cir.1974).3 Rule 37 of the U.S. Claims Court is identical to Rule 37 of the Federal Rules of Civil Procedure. The trial court in H......
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