Petty v. Manpower, Inc.

• Citation: 591 F.2d 615
• Decision Date: 12 February 1979
• Docket Number: No. 78-1300,78-1300
• Parties: 19 Fair Empl.Prac.Cas. 68, 19 Empl. Prac. Dec. P 8990 Forrest PETTY, Plaintiff-Appellant, v. MANPOWER, INC., Temporary Services, Milwaukee, Wisconsin, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 615

591 F.2d 615

19 Fair Empl.Prac.Cas. 68, 19 Empl. Prac.

Dec. P 8990

Forrest PETTY, Plaintiff-Appellant, v. MANPOWER, INC., Temporary Services, Milwaukee, Wisconsin,

Defendant-Appellee.

No. 78-1300.

United States Court of Appeals, Tenth Circuit.

Submitted Dec. 12, 1978.

Decided Feb. 12, 1979.

Kenneth N. McKinney, and Sally E. Scott, Oklahoma City, Okl., Atty., filed memorandum supporting summary action on behalf of defendant-appellee.

Before SETH, Chief Judge, and BARRETT and LOGAN, Circuit Judges.

PER CURIAM.

Forrest Petty seeks review of an order of the United States District Court for the Western District of Oklahoma dismissing without prejudice his pro se complaint for damages filed under 42 U.S.C. § 2000e. We affirm.

In March, 1977, appellant filed with the Equal Employment Opportunity Commission a charge of discrimination alleging that appellee had racially discriminated against him in violation of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Commission Act of 1972. Following a full investigation the Commission concluded that appellant had merely presented assertions of discrimination without factual support, and that there was no cause to believe that Title VII had been violated. Thereafter, within the ninety (90) day time limit set by 42 U.S.C. § 2000e-5(f)(1) appellant filed this pro se action in district court alleging employment discrimination. 42 U.S.C. § 2000e, Et seq. In response, appellee filed a motion to dismiss with an alternative motion for summary judgment. A hearing was set for February 27, 1978, with proper notice issued to both parties. When the case was called by the court for hearing, appellant did not appear. As a result an order was entered dismissing without prejudice appellant's complaint for lack of prosecution.

Subsequent to the initial dismissal, appellant notified the court that he had been unable to attend the hearing because of his incarceration in the Oklahoma City Jail. The district court treated appellant's letter as a motion for relief from judgment made pursuant to Fed.R.Civ.P. 60(b) and his case was reopened, with a properly noticed hearing set for March 15, 1978. Once again when appellant's case was called he did not appear, and the second order of dismissal without prejudice of the complaint was entered. From that dismissal appellant has appealed.

Previously it has been the strict policy of this court to view a district court's order dismissing a complaint only, but not the action itself, as a non-final, and thus nonappealable, order. Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033 (10th Cir. 1975). Although we shall continue to adhere to the principle that dismissal of a complaint only is not a final and appealable order, we shall endeavor to scrutinize such orders more closely in order to pinpoint those situations wherein, in a practical sense, the district court by its order has dismissed a plaintiff's action as well. What is of importance is the district court's intent in issuing its order dismissal of the complaint alone or actual dismissal of plaintiff's entire action?

Applying this principle to the situation at bar, it would appear to have been the clear intent of the district court to dismiss not only appellant's complaint, but his entire action as well. In its dismissal order the district court cites Fed.R.Civ.P. 41(b) involving the dismissal of an action. In addition, the court recites a lack of prosecutio...