Richard Sisk v. United States
756 F.2d 497
7th Cir.
1985
Check Treatment

*2 WOOD, Before ESCHBACH and FLAUM, Judges.

ESCHBACH, Circuit Judge.

Plaintiff, prisoner, an Arizona ap- peals order of the district court dismissing pro his se Federal Tort Claims prosecution pursuant want Fed.R.Civ.P. We reverse. give events which rise to this case Sisk, occurred while Richard who since the commencement of this action has prison incarcerated in the state Florence, Arizona, temporarily con- fined penitentiary at Terre Haute, In complaint, plaintiff Indiana. alleges personal that various items of prop- erty were lost or stolen from his cell as the result of negligence prison employ- following ees placement his removal and segregation. administrative After exhaust- ing the various administrative remedies he inclination, available,1plaintiff damage judgment; but to its instituted a to a court’s guided is to be judgment district court and its sound claim federal ” pursuant Freake, legal principles.’ to the Federal Tort Maclin v. United States §§ 1346(b), Act, Cir.1981) (Citations et Claims F.2d seq. omitted). Heidelberg Hammer, the commencement of his Since *3 1982, in plaintiff persisted Cir.1978), has the May, (7th in this ad- F.2d 429 court by filing of his claim a succes- propriety of a prosecution dressed the district court’s at primarily directed the sion of motions pro dismissal of an incarcerated felon’s se discovery (prompted matters pleadings and prosecution want of civil action for under part dilatory the conduct the de- by in of virtually circumstances identical to in those fendant), culminating in court’s the district determining the case. that the 20, denying plaintiff 1983 order of October erred, district court we held that a interlocutory appeal. to file an On leave dismissal of the action could properly not assigned day, the district court a the same plaintiff’s appear be based on failure to at 20, 1983, the trial date of December and possible trial where other methods of decid- parties plaintiff notified. When did were ing the the case on merits had not been of his appear at the December 20 trial explored and found infeasible. 431. Id. at Indianapolis, the dis- cause in district court Accord, Pitts, 558, Holt 619 F.2d 561- prosecution, missed the for want of (6th Cir.1980). Morris, 562 Stone v. Cf. 41(b), finding plaintiff Fed.R.Civ.P. (7th 730, Cir.1976) (Dis- 546 F.2d 735-736 steps or notify no to the court had taken excluding trict in summarily court erred concerning office the clerk’s his absence. incarcerated from his trial without subject This order of dismissal is the consideration criteria this by of articulated present appeal. court); 252, Francisco, Jerry 632 F.2d (3d Cir.1980) (Magistrate erred of A district court’s dismissal failing to consider incarcerated prosecution of action for want is discretion request appearance trial secure of incar- ary, and not be overturned on will witnesses). nonparty cerated per clear “unless it is that no reasonable son in the court’s Heidelberg, plaintiff could concur As in in the instánt [district] assessment issue under considera of impending had notice the date trial Lines, Inc., Greyhound tion.” steps but took pres- Stevens no secure his own 1224, (7th Cir.1983), quoting 710 F.2d 1229 ence at trial court of 497, Teletype Corp., And, Locascio v. 694 F.2d to do so.2 in Heidelberg, Cir.1982), denied, 499 cert. U.S. fully 461 district was apprised court 906, 1876, (1983). 103 76 L.Ed.2d S.Ct. time it scheduled the case for trial that However, say this not to that a district incarceration likely fore- beyond of re possibility court’s exercise discretion is close the appearance3 of his but “Discretionary view. choices ‘are not left nevertheless dismissed the action when Also, prison compliance regulations, 1. In with federal Heidelberg, unsuccessfully as in Sisk had 543.30-.32, properly 28 C.F.R. Sisk submitted appoint §§ moved the court counsel. Regional his claim to the North Central Office investiga- Bureau of of the federal Prisons for pretrial 3. As recited final order entered § tion and claim determination. 28 C.F.R. 543.- 1983, pretrial on a final conference subsequent by denial of Sisk’s claim by held on March 1983 and attended 8, 1982, Regional January on Counsel constitut- by telephonic hook-up means action, ed a final administrative C.F.R. Florence, time, prison state Arizona. At that 543.31(g), § entitled Sisk to institute a suit Sisk advised eligible the court that he was not 2675(a); in federal district court. 28 U.S.C. § parole year Subsequent until 543.31(h). Taylor, 28 C.F.R. Parratt v. § Cf. pleadings by court, including filed Sisk with the (1981) S.Ct. 68 L.Ed.2d 420 relating alleged various motions interference (availability procedure pre- of state tort claims litigation by with the prison instant Arizona prisoner cludes § 1983 officials, adequately put more than served to prison state hobby officials to recover value of lost court on notice Sisk’s incarceration. materials). wrongful appear, giving any failed to without act or omission of employ- government possible acting consideration to other ee of the federal methods within deciding scope his or her employment, case on its merits. This is imposes liability evident the court’s insistence in its final on FTCA the United pre-trial plaintiff appear degree order the same private court States to that a try expense. person his case at his own When a would be liable. §§ prisoner’s pro 1346(b) se civil action “reaches the and 2674. type stage, proves trial injuries his claim sufficient- and nature of remedied in FTCA ly meritorious to survive motions for dis- significantly actions can be different from § summary judgment, missal and actions, court those in always this is not steps must then take all reasonable neces- We the case.4 see no reason to set the sary to insure that the inmate receives the Heidelberg apart rationale of from the in- ‘day fair court’ to which he is entitled.” stant case on the basis of this distinction. *4 Pitts, 561-562, citing Holt v. 619 F.2d at rights Both Section 1983 civil actions and Hammer, Heidelberg v. 577 F.2d at 431. provide FTCA actions monetary compensa- However, case, in the instant the district wronged injured individuals,5 tion to or and this, court did not consequently, do may relatively involve small sums of mon- failed to exercise its discretion. ey.6 away application To turn from an principles the set out in Heidelberg on the Although the instant case in basis of the size of monetary damages volves a claim under the Federal Tort sought require imper- this court to (FTCA) Claims Act damages totalling for missibly beyond venture the judi- limits of § Heidelberg $226.46 while was a 1983 ac cial legislative review and into rulemaking. brought against tion police numerous offi Accordingly, we necessary find it to re- prosecutors cers and involved in the incar mand this case court, to the district light in cerated arrest and conviction for of Heidelberg, to consider other feasible murder, these distinctions do not call for a deciding alternatives7 for this case on its result different from Heidelberg. The merits findings and to make thereon should FTCA is a waiver sovereign immunity the court determine dismissal is warranted. for certain suits sounding in tort. When injury property, to loss of property, person require court, we the district in injury al or death arise out of negligent discretion, the exercise of its to make a 4. Since agents actions, do not act under color of 5. Unlike § 1983 relief other than mone- law, rights state tary federal civil damages acts by cannot nor is not authorized the FTCA. 28 mally remedy be invoked § their U.S.C. misconduct. 343, (7th See Moriarity, Meiners v. 563 F.2d 348 Indeed, where the realistic amount to be Cir.1977); re- Bloemker, 673, Askew v. 548 F.2d 678 small, covered in a may relatively § 1983 action is it Cir.1976). Relief by from misconduct fed preferable, be provides, if a state so agents may eral be obtained either a suit procedures. utilize small claims court See Mar- against agent for a constitutional tort under California, 277, 7, 444 U.S. tinez 283-284 n. theory set forth in Bivens v. Six Unknown 553, 7, 100 S.Ct. 558-559 n. 62 L.Ed.2d 481 Agents, 388, 1999, Named 403 U.S. 91 S.Ct. (1980) (§ litigated 1983 action also be in (1971), L.Ed.2d 619 or a suit court). United States under the Federal Tort Claims Act. While it is rights uncertain whether a civil viola appointment 7. We would include the of counsel tion or a permit constitutional tort alone will yet possibility as another suggested to those in Act, to invoke the Federal Tort Claims Heidelberg achieving disposition for on the Belt, 490, Gray (D.C.Cir. 712 F.2d 514-515 However, merits. determining we note that in — 1983), denied, U.S.-, cert. 104 S.Ct. bringing whether Sisk to Indiana is a feasible (1984); States, 80 L.Ed.2d 125 Hohri v. United alternative, judge may properly district con- F.Supp. (D.D.C.1984); Van Schaick only sider not the interests of the inmate in States, F.Supp. (D.S.C. v. United presenting testimony, costs, his but also the 1983), permits the Act nevertheless claims based risks and transporting inconvenience of upon misconduct which is tortious under state Arizona, compared substantiality to the 1346(6), 2680; Bell, Gray §§ law. Morris, of the matter at issue. Stone v. 546 F.2d 712 F.2d at 514. (7th Cir.1976). justice peace meaningful exploration possible of other claims Dillin, sufficiently Judge deciding meritori- in seasoned ex- methods $166.46. actions, discretion, prisoner pro this is not se civil of his sound dismissed ous ercise suggest court must uti- knowing that the district plaintiff, when claim trial deciding plain- ofway some advance, lize alternative date well failed contact the feasible, if not case on the merits or tiffs court, anything or the or else clerk do if Nor do we in one none exists. devise might see what be done about trial. I any responsibili- way abrogate general no need more see now show concern forward, plaintiff moving his cause ty of about small claim than plaintiffs condone at trial in absence pro- himself at the time in the did critical apply for a light of his failure to continu- Already judges, cess. four federal here corpus or writ of ad testifi- ance8 habeas court, the trial have involved any way court of candum his claim. I with would not send it back to present to be trial. Like- his a fifth. wise, plaintiffs appar- dowe not condone admittedly There is similarity some with complacency placing the burden ent not, I Heidelberg, but do as the majority the district effect an upon court to alterna- does, “virtually see it to be identical” with deciding method of claim on the tive case. I think there is a funda- any merits. Had the record disclosed rele- distinction. Heidelberg mental awas civil demonstrating facts the district vant rights brought under 42 U.S.C. disposition efforts to facilitate the court’s § 1983, alleging serious violations in con- *5 merits, plaintiff’s plaintiff’s of case on the nection with the Illinois murder apply from trial failure to absence and the is conviction. Section 1983 not a small a writ or continuance otherwise noti- for statute, recognized claims but is to be for fy court well have warranted dis- protection rights. of constitutional prosecution. of this of missal case for want Heidelberg alleged that his murder convic- The of district court’s order dismissal is tion was tainted state destruction of his REVERSED, is and this case REMANDED papers, legal eavesdropping electronic on proceedings further consistent with this conversations between himself and his at- opinion. Circuit shall apply. Rule 18 torney, line-up report, po- falsification of a tapping telephone calls, lice of incoming Jr., WOOD, HARLINGTON perjury. serving He sentence of dissenting. years. up That adds all to more opinion majority is not $166.46, only than but the amount is one support some our without decision weighed by judge factor to be the trial Hammer, Heidelberg v. 577 F.2d 429 exercise of his discretion. We con- Cir.1978),I would Heidelberg draw the line sidered the also Heidelberg justify case short of this just case. appointment represent of counsel to brought under his civilsuit the Fed- plaintiff public on as a service con- Tort Claims Act eral for reimbursement for suggested tribution and that trial court personal property items of his various he majority do same on The remand. does stolen claimed been lost or from his not find that this case likewise merits the peni- while cell incarcerated in of appointment Heidelberg counsel. made Haute, tentiary at Terre Indiana. He is clear that it the error that was found was prisoner a state in Arizona. now error particu- circumstances According appraisal own lar case. 577 F.2d at 430-31. Heidelberg missing property is was not intended $216.46. valued The to be rule under all plaintiff government offered settle- circumstances for all I $50 times. find no fault ment, so what left we have a small the Heidelberg with decision. course, recognize, satisfactory We in the instant solution since will be incar- postponement many mere the trial years. case is not a cerated more majority recognizes disput-

The that the ed dismissal determination is a discretion-

ary judge, one for the trial but then seems to leave him little discretion to exercise. majority it states that does not intend abrogate plaintiffs general responsi- forward,

bility to move his case and does plaintiffs not intend to condone failure apply for a continuance or a writ of habeas

corpus ad testificandum his failure to the court of his to be nor, said, present; it it is does intend to plaintiff's complacency placing condone upon judge the burden the trial to effect an Nevertheless, alternate method. it seems exactly majority to me that that is what the has done. given has no

satisfactory explanation setting for his trial would, therefore, I keep

default. decline to bouncing this case around on our crowded dockets as an undeserved accommodation neglect complacency. Sisk’s own

I therefore respectfully dissent.

UNITED America, STATES of

Plaintiff-Appellee, SERVICE, INC., CAPITOL Kohlberg Theatres Corporation, Service Marcus Corporation Theatres and United Art- Circuit, ists Inc., Theatre Defendants- Appellants. No. 83-2518. Fishbein, Peter M. Kay, Scholer, Fier- man, Hays Handler, & New York City, for United States Court Appeals, defendants-appellants. Seventh Circuit. Argued June Nicholson, Robert B. Dept, of Jus- tice, Washington, D.C., for plaintiff-appel- Decided Feb. lee. Rehearing and Rehearing En Banc 22,1985.

Denied Before BAUER ESCHBACH,

Judges; and EDWARDS, Senior Circuit Judge.* Edwards, George *The Honorable Circuit, C. Senior Cir- sitting by Sixth designation. cuit Appeals United States Court of