Reynolds v. Foree, 85-1351
| Decision Date | 05 September 1985 |
| Docket Number | No. 85-1351,85-1351 |
| Citation | 771 F.2d 1179 |
| Parties | Donald Craig REYNOLDS, Appellant, v. Steve FOREE, Jail Superintendent, and Patrick D. Rackers, Corrections Director, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Donald Craig Reynolds, pro se.
Michael E. Thew, Lincoln, Neb., for appellees.
Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.
Donald Craig Reynolds appeals pro se from a final judgment entered in the District Court for the District of Nebraska dismissing without prejudice his 42 U.S.C. Sec. 1983 complaint. For reversal appellant argues that the district court abused its discretion in dismissing the complaint because of appellant's failure to appear at a pretrial conference. For the reasons discussed below, we reverse and remand.
In January 1984 appellant, an inmate at the United States Penitentiary in Lompoc, California, filed this Sec. 1983 action in the district court alleging various violations of his constitutional rights by certain Lancaster County prison personnel while he was a pretrial detainee there for five months. Subsequently, appellant moved for appointment of counsel and a writ of habeas corpus ad testificandum. The magistrate denied the writ of habeas corpus on the grounds that plaintiffs in civil rights cases do not have any constitutional right to be present at the trial of such cases. The magistrate deferred ruling on the motion for appointment of counsel for forty days to permit appellant to file a statement of the reasons why he believed he could not represent himself in the action and a showing of a substantial but unsuccessful effort to obtain counsel. This effort to secure counsel had to be supported by letters received from private attorneys declining to represent him. On January 8, 1985, the magistrate denied the request for counsel because appellant had not made the showing required.
The magistrate subsequently scheduled trial of the case for February 1985 and a pretrial conference for January 18, 1985. Neither appellant nor an attorney on his behalf appeared at this pretrial conference. As a result, the magistrate issued an order requiring appellant to show cause why his complaint should not be dismissed. Appellant, on February 5, 1985, submitted a response which again asked that counsel be appointed, that the court issue a writ of habeas corpus ad testificandum and that his case not be dismissed. On February 8, 1985, the district court dismissed the case without prejudice. The district court stated that "if the plaintiff at some later time is able to be in Nebraska for trial, at his own expense, he may attempt to refile the case at that time." The district court justified the dismissal on the grounds that there were no funds with which to pay counsel for indigent civil rights plaintiffs or to transport an indigent civil rights plaintiff to the state for pretrial conferences or trial, appellant had not indicated to the court when he would be released from incarceration so as to be able to appear for pretrial conference and trial, and retaining the case on the docket for an indefinite length of time would not be judicially efficient. District Court Memorandum, No. CV-84-L-13, (Feb. 8, 1985).
Appellant initially argues that the district court abused its discretion in dismissing his complaint for failure to appear at a pretrial hearing. We agree.
The Sixth Circuit in a case factually similar to this one has held that dismissing a pro se civil rights complaint because of the plaintiff's failure to appear at a preliminary hearing was an abuse of discretion. Holt v. Pitts, 619 F.2d 558 (6th Cir.1980). The Sixth Circuit stated:
[t]hrough its order...
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