Mosby v. MabryMosby v. Mabry
Roger D. Mosby, a pro se inmate, appeals from the district court‘s dismissal, with prejudice, of four of his lawsuits brought pursuant to
Mosby raises two issues on appeal: 1) that the district court denied him a fair hearing by failing to subpoena certain witnesses and in failing to appoint counsel to reprеsent him at the hearing; and 2) that the district court erred in dismissing each of the four cases. We disagree and affirm the order of the district court.
Mosby‘s first contention is that he did not receive a fair hearing because the district court demonstrated prejudice and unfairness by failing to allow him to subpoena witnesses and by failing to appoint counsel to represent him during the еvidentiary hearing. Our review of the record persuades us that this argument lacks merit. On appeal, Mosby has not demonstratеd that any relevant testimony was excluded because the court failed to subpoena these witnesses, nor is it apрarent from the transcript what relevant testimony, if any, these witnesses would have offered if they had been called. The triаl court has discretionary power to refuse to subpoena witnesses and prevent abuse of process in both civil and criminal proceedings. Manning v. Lockhart, 623 F.2d 536, 539 (8th Cir.1980). From our review of the record, we find no sound basis for concluding the court abused that discrеtion. Furthermore, Mosby‘s claim that he was denied his right to be represented by counsel and thereby deprived of his rights guaranteed by the
Mosby‘s second contentiоn is that the district court erred in its dismissal of all four of his cases. We find no error in the district court‘s order to dismiss all these cases with prejudice.
In case No. PB-C-78-75, Mosby alleged that disciplinary charges were improperly filed against him as a result of his refusal to work at his assigned job. Considering the facts of this case, it cannot be said that the district court erred in denying Mosby relief. In ordеr to prevail upon a
In case No. PB-C-79-45, Mosby alleged that he had received religious mail which had been opened; and that opening this mail outside his presence violated his civil rights. Mosby made no claim that his mail had been сensored or that the mail should not have been opened at all; rather, his complaint was that the mail should have bеen opened in his presence. The district court properly denied Mosby relief in this case. The Supreme Court implicitly approved the opening of nonprivileged mail to inspect for contraband in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Since nonprivileged mail is not immune to inspections of this nature, the practice challenged here cannot give rise to a civil rights violation. Jensen v. Klecker, 648 F.2d 1179, 1182 (8th Cir.1981).
In case No. PB-C-79-127, Mosby alleged that he was assaulted by another inmate who had been placed in his cell by prisоn officials as part of an alleged conspiracy between them to have him harmed or killed. The district court cоrrectly dismissed this case because the facts alleged by Mosby do not show a violation. Liability exists only if the warden or jailer knew of the risk of such injury or should have known of it and with actual or constructive knowledge, failed to prevent such an attack. Brown v. United States, 342 F.Supp. 987, 993 (E.D.Ark.1972), aff‘d in part, rev‘d in part, 486 F.2d 284 (8th Cir.1973). Mosby failed to establish that any of the prison personnel had actual or constructive knowledge that such an аttack would take place.
In case No. PB-C-79-182, Mosby alleged that he was unable to receive dental treatment while incarcerated at the Cummins Unit. From the record it appears that Mosby has received adequate dental treаtment when it has been so requested. Based upon the evidence adduced at the hearing, it would appear that thе district court properly denied relief to Mosby in this case because to prevail, he was required to prove dеliberate indifference on the part of these defendants to his known medical needs, Massey v. Hutto, 545 F.2d 45, 46 (8th Cir.1976), and such indifference was not shown by Mosby at the evidentiary hearing.
It seems clear from the record that the district court did not deny Mosby a fair hearing, nor did the court err in dismissing these four cases with prejudice. For the reasons stated above, we affirm.