Perko v. Bowers, No. 90-2227

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore McMILLIAN and BEAM, Circuit Judges, and BRIGHT; BRIGHT
Citation945 F.2d 1038
Decision Date31 October 1991
Docket NumberNo. 90-2227
PartiesJames PERKO, Appellant, v. Dr. BOWERS, Unknown Medical Personnel, Gerald Wireman, Frederick T. Counterman, Dr. Cowles, Kenneth Watson, Appellees.

Page 1038

945 F.2d 1038
James PERKO, Appellant,
v.
Dr. BOWERS, Unknown Medical Personnel, Gerald Wireman,
Frederick T. Counterman, Dr. Cowles, Kenneth
Watson, Appellees.
No. 90-2227.
United States Court of Appeals,
Eighth Circuit.
Submitted June 11, 1991.
Decided Sept. 24, 1991.
Rehearing and Rehearing En Banc
Denied Oct. 31, 1991.

Julie Faye Keith, Kansas City, Mo., for appellant.

June Striegel, argued (Michael R. Whitworth, on brief), Jefferson City, Mo., for appellees.

Before McMILLIAN and BEAM, Circuit Judges, and BRIGHT, Senior Circuit Judge.

BRIGHT, Senior Circuit Judge.

James Perko appeals the district court's dismissal of his 42 U.S.C. § 1983 action against officials and medical personnel of the Missouri State Penitentiary in Jefferson City, Missouri. The district court granted defendants' motion for dismissal under the "fugitive from justice rule," which allows a court to dismiss certain judicial proceedings of a prisoner because of his escape, on the basis of Perko's two-day escape from prison. Perko contends on appeal that the district court erred by dismissing his action. We agree and reverse the district court's judgment of dismissal.

Page 1039

I. BACKGROUND

In May 1987, while confined at the Missouri State Penitentiary in Jefferson City, Missouri, Perko brought this § 1983 claim against prison officials and medical personnel, alleging that the defendants showed deliberate indifference to his serious medical needs in their diagnosis and treatment of his tuberculosis. The district court referred the case to a magistrate judge for processing. While the case was pending, Perko completed his prison sentence and was released from confinement. He actively pursued his claim after his release.

On June 12, 1988, police arrested Perko for armed robbery. Subsequently, he was convicted and sentenced to fifteen years imprisonment in the Missouri prison system. Perko served his new sentence at a different institution than the one at issue in this case. During this second period of incarceration, Perko continued actively to pursue his § 1983 claim.

In June 1989, the district court granted Perko leave to proceed with his § 1983 claims in forma pauperis and appointed counsel to represent him. On September 5, 1989, Perko escaped from confinement, but state officials recaptured him on September 7, 1989. Perko received an additional three-year sentence for his escape. Upon his return to confinement, Perko continued to press his § 1983 claim, conducting discovery throughout the fall of 1989. The record fails to disclose any interruption in the processing of this case as a result of his escape.

On January 4, 1990, approximately four months after Perko's escape and recapture, defendants filed a motion to dismiss this case on the basis of the fugitive from justice rule. The magistrate judge issued a Report and Recommendation denying defendants' motion to dismiss. Defendants filed exceptions to the Report and Recommendation and requested certification of the decision for interlocutory appeal. Upon certification, and after reviewing the record de novo, the district court summarily declined to follow the magistrate judge's recommendation and dismissed Perko's claims pursuant to the fugitive from justice rule. The district court ruled, in effect, that Perko's two-day escape from detention during the pendency of this action automatically triggered the fugitive from justice rule requiring dismissal. This appeal followed.

II. DISCUSSION

This case presents the novel question of the applicability of the so-called "fugitive from justice rule" (rule) to cases other than direct criminal appeals. The parties agree to the well-established doctrine that an appellate court may dismiss a convicted defendant's criminal appeal pursuant to the rule if the defendant has become a fugitive from justice during the pendency of the appeal. See, e.g., Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970) (per curiam); Brinlee v. United States, 483...

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8 practice notes
  • U.S. v. Barnette, Nos. 95-3591
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 20, 1997
    ...unknown after issuance of bench warrants for failing to appear at depositions and to comply with court orders). See also Perko v. Bowers, 945 F.2d 1038 (8th Cir.1991) (doctrine can be applied in civil cases); United States v. Van Cauwenberghe, 934 F.2d 1048 (9th Cir.1991) (doctrine can be a......
  • Hageman v. Morrison Cnty. Sheriff's Office, Court File No. 18-cv-1005 (JNE/LIB)
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • December 18, 2018
    ...defendant whose right to appeal is forfeited after escaping custody, it has also been applied in the civil context. Perko v. Bowers, 945 F.2d 1038, 1039-40 (8th Cir. 1991). The doctrine is premised primarily upon a "concern for the enforceability of a court's judgments and a 'disentitlement......
  • USA. v. Hanzlicek, No. 97-5172
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 16, 1999
    ...have generally been far more hesitant to apply the fugitive disentitlement doctrine in the civil context. See, e.g., Perko v. Bowers, 945 F.2d 1038, 1039-40 (8th Cir. 1991) (discussing generally narrower applicability of doctrine outside of direct criminal appeal context). KELLY, Circuit Ju......
  • U.S. v. Boyd, Nos. 91-2227
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 10, 1992
    ...from the court's power and process and remains at large during the pendency of his appeal forfeits his right to appeal." Perko v. Bowers, 945 F.2d 1038, 1039 (8th Cir.1991) (quoting Wayne v. Wyrick, 646 F.2d 1268, 1270 (8th Cir.1981)), petition for cert. filed, 60 U.S.L.W. 3553 (U.S. Jan. 2......
  • Request a trial to view additional results
8 cases
  • U.S. v. Barnette, Nos. 95-3591
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 20, 1997
    ...unknown after issuance of bench warrants for failing to appear at depositions and to comply with court orders). See also Perko v. Bowers, 945 F.2d 1038 (8th Cir.1991) (doctrine can be applied in civil cases); United States v. Van Cauwenberghe, 934 F.2d 1048 (9th Cir.1991) (doctrine can be a......
  • Hageman v. Morrison Cnty. Sheriff's Office, Court File No. 18-cv-1005 (JNE/LIB)
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • December 18, 2018
    ...defendant whose right to appeal is forfeited after escaping custody, it has also been applied in the civil context. Perko v. Bowers, 945 F.2d 1038, 1039-40 (8th Cir. 1991). The doctrine is premised primarily upon a "concern for the enforceability of a court's judgments and a 'disentitlement......
  • USA. v. Hanzlicek, No. 97-5172
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 16, 1999
    ...have generally been far more hesitant to apply the fugitive disentitlement doctrine in the civil context. See, e.g., Perko v. Bowers, 945 F.2d 1038, 1039-40 (8th Cir. 1991) (discussing generally narrower applicability of doctrine outside of direct criminal appeal context). KELLY, Circuit Ju......
  • U.S. v. Boyd, Nos. 91-2227
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 10, 1992
    ...from the court's power and process and remains at large during the pendency of his appeal forfeits his right to appeal." Perko v. Bowers, 945 F.2d 1038, 1039 (8th Cir.1991) (quoting Wayne v. Wyrick, 646 F.2d 1268, 1270 (8th Cir.1981)), petition for cert. filed, 60 U.S.L.W. 3553 (U.S. Jan. 2......
  • Request a trial to view additional results

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