Nitcher v. Thompson, WD

• Decision Date: 16 June 1992
• Docket Number: No. WD,WD
• Citation: 832 S.W.2d 933
• Parties: Rory D. NITCHER, Appellant, v. George THOMPSON, et al., Respondents. 45256.
• Court: Missouri Court of Appeals

Page 933

832 S.W.2d 933

Rory D. NITCHER, Appellant, v. George THOMPSON, et al., Respondents.

No. WD 45256.

Missouri Court of Appeals Western District.

June 16, 1992.

Rory D. Nitcher, pro se.

William L. Webster, Atty. Gen., June Striegel Doughty, Asst. Atty. Gen., Jefferson City, for respondents.

Before SHANGLER, P.J., and KENNEDY and SMART, JJ.

SHANGLER, Judge.

Rory D. Nitcher is a prisoner in the custody of the Missouri Department of Corrections. He is serving a forty-five year sentence for aiding the escape of his former cellmate, Bill Herron, while Nitcher was on parole. State v. Nitcher, 744 S.W.2d 468 (Mo.App.1987); see Herron v. Whiteside, 782 S.W.2d 414, 415 (Mo.App.1989) (for a summary of that event).

In 1987, Nitcher brought suit for damages against three prison employees for the negligent loss of his personal property. In 1988, the trial court dismissed the suit on the grounds that the Nitcher petition was frivolous or malicious and lacked facts that entitled him to relief. On appeal, this court reversed the dismissal and remanded the cause for further action. Nitcher v. Thompson, 777 S.W.2d 626 (Mo.App.1989). After remand, the prison employees moved for summary judgment, which was then granted in 1991. Nitcher then brought this appeal.

The basis for the prison employees' motion for summary judgment was involvement of Nitcher in two prison escapes during the pendency of his civil action now on appeal. Exhibits appended to the motion proved that Nitcher had attempted escape on May 14, 1987, and had escaped on May 5, 1988.

The 1987 escape attempt occurred when Nitcher was being returned to the prison after an appearance in civil rights litigation which he had instituted in federal court. Nitcher removed his leg irons, overcame a guard, and took off down a side street. The guard chased, grappled and recaptured Nitcher. The guard suffered a serious shoulder injury in the struggle. Nitcher v. Does, 956 F.2d 796, 798 (8th Cir.1992).

In 1988, Nitcher escaped from the Jasper County Jail where he was housed pending other court proceedings. He absconded by climbing and jumping over a fence in the exercise yard. A jail guard who witnessed the event ran after Nitcher, but to no avail. Nitcher remained at large until his recapture by a deputy sheriff at a service station on the following day.

In suggestions in opposition to summary judgment, Nitcher did not deny the escapes, but emphasized that he had not been criminally prosecuted for either incident.

This case presents an issue new in this jurisdiction, whether a prisoner who escapes from incarceration should be permitted to maintain civil litigation pending in our state courts at the time of the escape.

We determine that a prisoner's escape from incarceration and involuntary surrender provide a discretionary basis for summary dismissal of his civil litigation then pending. Our holding is prompted by numerous cogent concerns and basic premises. Prison escape is a danger to the public. It manifests disdain for our system of justice and rejection of its processes. It works to disentitle the prisoner from calling upon the court and its resources for litigation of private grievances. Our holding promotes sound policy to discourage escapes and protect the integrity of the legal system.

First and above all, escape constitutes a dangerous, deliberate act. Any escape from prison or custody, or attempt to escape, necessarily imperils not only the prisoner, but also prison personnel, other prisoners, and the public. The dangerousness of escape is intensified by a prisoner who refuses to surrender and requires recapture.

Second, by escape, the prisoner flouts our entire system of justice, the very system which provides a forum for litigating personal claims. The judicial system allows a prisoner to initiate private actions without payment of filing fees, and grants the prisoner access to the same resources available to ordinary citizens to pursue actionable claims, including service of process, discovery, motion practice, trial, and appeal. The prison system may not unduly interfere with a prisoner's right to access to the courts. It is required to implement that right in numerous ways by allowing possession of legal papers, preparation of court filings, and consultation of legal authorities, and by providing transportation to court proceedings. A prisoner who escapes manifests intent to permanently separate from the control of the prison authorities and the jurisdiction of the courts, and thereby, from the entire legal process. While at large an escapee forsakes any realistic possibility of continued private litigation in the courts repudiated by the escape. The escapee's involuntary return to the system by recapture provides insufficient justification for allowing pursuit of private legal matters in our state courts.

Third, under the doctrine enunciated in Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), escape disentitles the escapee from calling upon the resources of the court. In Molinaro, the United States Supreme Court ruled that an appellate court could dismiss the appeal from a criminal conviction if the defendant had become a fugitive from justice. The Court acknowledged that the escape of the defendant did not strip the underlying case of its adjudicable character, but concluded that the flight from justice "disentitle[d] the defendant to call upon the resources of the Court for determination of his claims." Id. at 365-66, 90 S.Ct. at 499.

Molinaro involved the criminal appeal of a fugitive who had remained at large during the pendency of the appeal. Extensions of Molinaro in the federal circuit courts of appeal resulted in the "fugitive from justice rule." That rule has been applied to dismiss criminal and quasi-criminal appeals for flight occurring at any time during custody and at any stage of the judicial process, and even when the fugitive has been returned to custody. See, e.g., Buckley v. Lockhart, 892 F.2d 715, 720 n. 5 (8th Cir.1989); United States v. Parrish, 887 F.2d 1107, 1108 (D.C.Cir.1989); United States v. Persico, 853 F.2d 134, 137 (2nd Cir.1988).

The rationale of Molinaro has been applied to the civil cases of fugitives from justice. See e.g., Clark v. James, 794 F.2d 595 (11th Cir.1986); Ali v. Sims, 788 F.2d 954 (3d Cir.1986). In Clark, the prisoner escaped from custody and remained at large at the time of the hearing of his civil rights action. The federal court of appeals upheld the dismissal of the prisoner's action against prison authorities. Clark v. James, 794 F.2d at 596. His involuntary return by recapture, even though it occurred before his civil case was dismissed, provided no justification to allow resumption of the litigation. Id. at 597. In Ali, supra, the court denied a new trial in a civil rights case to a prisoner who had escaped by skyjacking a plane to Cuba while being transported to the penitentiary after the initial civil trial. Ali relied on the Molinaro rationale, and noted that nothing in that decision limited the disentitlement doctrine to the criminal context. Ali, 788 F.2d at 959. Ali also observed: "in this age of overcrowded dockets and court backlogs, it is unreasonable to expect a court to expend its scarce resources on one who has blatantly disregarded the court's procedures." Id.

Missouri appellate courts have cited the Molinaro premise to support and develop the escape rule. See, e.g., State v. Smith, 815 S.W.2d 74, 75 (Mo.App.1991); State v. Branch, 811 S.W.2d 11, 12 (Mo.App.1991); State v. Wright, 763 S.W.2d 167, 169 (Mo.App.1988). The escape rule operates to deny the right of appeal to one who, following conviction, attempted to escape justice. State v. Voyles, 823 S.W.2d 143, 144 (Mo.App.1992). The escape rule has been applied to the dismissal of postconviction proceedings, Stradford v. State, 787 S.W.2d 832, 833 (Mo.App.1990), without regard to whether the movant was convicted of the crime of escape. State v. Schleeper, 806 S.W.2d 459, 460 (Mo.App.1991).

Molinaro and its successors are prominent in the decision of the court in Perko v. Bowers, 945 F.2d 1038 (8th Cir.1991); cert. denied, 503 U.S. 939, 112 S.Ct. 1482, 117 L.Ed.2d 624 (1992). The arguments on appeal of both Nitcher and the prison employees are structured around the facts and the holding of Perko. In that case, a Missouri inmate instituted a § 1983 action in federal court against prison officials and medical personnel. Perko actively pursued his claim after completing his prison sentence. He was subsequently arrested, convicted of another crime, and sentenced to a second term of imprisonment. During the second incarceration, Perko continued to...