                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 01-1211
                                     ___________

Matthew W. Barnett,                       *
                                          *
            Appellant,                    *
                                          *
      v.                                  *   Appeal from the United States
                                          *   District Court for the Western
Young Men's Christian Association,        *   District of Missouri.
Inc.; George Hartsfield, Director,        *
                                          *
            Appellees.                    *

                                     ___________

                            Submitted: September 13, 2001

                                 Filed: October 15, 2001
                                  ___________

Before HANSEN and BEAM, Circuit Judges, and BOGUE,1 District Judge.
                             ___________

BEAM, Circuit Judge.

      Appellant Barnett sued the Jefferson City Area Young Men's Christian
Association, Inc. (YMCA) while he was an inmate in the Missouri Department of
Corrections. Barnett claimed the wage he was paid under a work release program
violated the minimum wage provisions of the Fair Labor Standards Act (FLSA).


      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
During the course of the proceedings, the district court dismissed the case under the
fugitive from justice rule, also called the fugitive disentitlement doctrine. Prior to
dismissal, Barnett had walked away from a half-way house in Kansas City where he
was paroled and could not be found for a period of several months. The district court
concluded that because Barnett had been absent for an extended period and had
disrupted the court's schedule, dismissal was appropriate. We disagree.


I.    BACKGROUND


      Barnett was an inmate in the Missouri Department of Corrections (MDOC).
Pursuant to an agreement between the MDOC and the YMCA, Barnett worked for the
YMCA as part of an organized work release program. He was employed at the
YMCA from August 1997 until December 1997, and was compensated for his labor
at a rate of one dollar ($1.00) per hour.


     On April 17, 1998, Barnett filed this case pro se asserting claims under the
FLSA as well as several state claims. The district court first dismissed the case on
June 2, 1998, finding that prisoners are not employees covered by the FLSA and
therefore Barnett had not alleged facts invoking federal question jurisdiction on that
issue. On appeal, we held that prisoners are not necessarily excluded from coverage
under the FLSA and that Barnett had stated a claim under the FLSA. The case was
remanded to the district court for further proceedings.


      YMCA subsequently filed a motion for summary judgment on September 21,
1999, and Barnett responded by filing a response in opposition to summary judgment
on October 12, 1999. It was not until April 21, 2000, that the magistrate judge
recommended that the motion for summary judgment be granted and that the claims
be dismissed. Barnett then filed exceptions to that recommendation on May 15, 2000.




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      During relevant times, Barnett was released from confinement in the MDOC and
resided in the Kansas City Community Center as part of his parole. On or about April
1, 2000, Barnett failed to return to the Center and was deemed to be in violation of his
parole. Barnett's attorney was not aware of this violation and states that during this
time Barnett maintained telephone contact with him at least intermittently.


      On June 20, 2000, the magistrate judge ordered a telephone conference to
discuss Barnett's whereabouts. Barnett's attorney states that he appeared on his
client's behalf via telephone on June 29, 2000. During that conference, the court
inquired as to his attorney's knowledge of Barnett's physical location.        Barnett's
attorney indicated he did not know Barnett's specific location but that he did receive
periodic phone calls from Barnett.


      On July 6, 2000, the magistrate judge ordered that the parties investigate
Barnett's location. The court further ordered that if Barnett was not found, the parties
should file any appropriate motions regarding Barnett's status. YMCA filed a motion
to dismiss on July 11, 2000. An order to show cause was issued on August 2, 2000,
in response to YMCA's motion, and Barnett informed the court of his changed
address and location on or about August 11, 2000. Barnett's attorney then filed
suggestions in opposition to the motion to dismiss on August 31, 2000.


      Finally, on September 22, 2000, the district court ruled that the lawsuit should
be dismissed with prejudice due to Barnett's status as a fugitive from justice. Barnett
appeals that ruling.


II.   DISCUSSION


      "Courts invested with the judicial power of the United States have certain
inherent authority to protect their proceedings and judgments in the course of
discharging their traditional responsibilities." Degen v. United States, 517 U.S. 820,

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823 (1996) (citations omitted). The fugitive disentitlement doctrine provides a federal
court with a basis for dismissal in select criminal and civil cases. Perko v. Bowers,
945 F.2d 1038, 1039-40 (8th Cir. 1991). In light of that power, "a court should
exercise its discretion in determining whether to dismiss a criminal defendant's civil
case based upon the circumstances of each individual case." Id. at 1040 (citation
omitted). Principles of deference counsel against utilizing this inherent authority and
require its use only as a reasonable response to the problems and concerns that
provoke it. Degen, 517 U.S. at 823-24.


       In Perko we refused to allow dismissal pursuant to the fugitive disentitlement
doctrine in a civil suit brought by a criminal defendant. Perko, 945 F.2d at 1040.
Traditionally under this doctrine, a criminal defendant forfeits his right to appeal once
he removes himself from the court's power and process by escaping custody and
remaining at large during the pendency of his appeal. Id. at 1039; see also Ortega-
Rodriguez v. United States, 507 U.S. 234, 242 (1993) (stating that the Court
unequivocally approves dismissal as an appropriate sanction when a prisoner is a
fugitive during the ongoing appellate process).


       Since our ruling in Perko, however, the Supreme Court has reviewed application
of the fugitive disentitlement doctrine in two significant cases, both regarding
dismissals under the doctrine by appellate courts. See Degen, 517 U.S. 820 (1996);
Ortega-Rodriguez, 507 U.S. 234 (1993). In Ortega-Rodriguez, the Court held that
federal courts have the authority to dismiss an appeal if the petitioner is a fugitive while
the matter is pending. Ortega-Rodriguez, 507 U.S. at 239. The defendant there,
however, fled the jurisdiction of the district court and was recaptured before he
invoked the jurisdiction of the appellate tribunal. Id. at 242. The Court vacated the
dismissal of the criminal appeal because the fugitive was recaptured. Id. at 252. The
Court recognized that while the petitioner flouted the dignity of the district court with
his fugitive status, the authority of the court of appeals was not affected because the
appeal was filed after he was recaptured. Thus, it was not within the authority of the

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court of appeals to dismiss the case. Id. at 246. The Court clearly called for a
connection between a defendant's fugitive status and his appeal before a federal court
was empowered to dismiss. Id. at 249.


      A second application of the fugitive disentitlement doctrine was addressed in
Degen, which involved a fugitive as a defendant in a civil action. In Degen the Court
unanimously held that the disentitlement doctrine does not allow "a court in a civil
forfeiture suit to enter judgment against a claimant because he is a fugitive from, or
otherwise is resisting, a related criminal prosecution." Degen, 517 U.S. at 823. The
Court reached this decision by reviewing the following underlying justifications for the
disentitlement doctrine: (1) risk of delay or frustration in determining the merits of the
claim; (2) danger that the judgment in the civil case will be unenforceable; (3) risk of
compromising the criminal prosecution by use of civil discovery mechanisms; (4) the
need to redress the indignity visited upon the court by a fugitive's absence; and (5) the
need to deter flight from criminal prosecution. Id. at 825, 828.


      Focusing on the first two justifications, the Court held there was no risk of delay
or frustration, nor unenforceability, in following through with the civil forfeiture claim
while the criminal claim was pending. Id. at 825. The Court further held that the third
factor was unnecessary because the district court had its usual authority to manage
discovery so as to avoid risk of compromising a pending criminal prosecution. Id. at
826. The Court also discounted factors four and five (indignity and deterrence) as
legitimate justifications advanced by disentitlement in a civil context. Id. at 828. The
Court quite clearly stated that dismissal under the disentitlement doctrine "would be
an arbitrary response to the conduct it is supposed to redress or discourage." Id.
Ultimately, the Degen Court held that "[t]he dignity of a court derives from the respect
accorded its judgments. That respect is eroded, not enhanced, by too free a recourse
to rules foreclosing consideration of claims on the merits." Id.




                                           -5-
         The case before us today stands in a third, distinct procedural posture that the
Supreme Court has yet to analyze in its fugitive disentitlement jurisprudence. Here, the
fugitive is a plaintiff in a civil suit. We find that the same factors set forth in Degen
apply to civil cases where the fugitive is a plaintiff. We base our review of a dismissal
pursuant to the fugitive disentitlement doctrine on the underlying justifications for
disentitlement, recognizing that their applicability will vary on a case-by-case basis.


         We adopt the reasoning of the Eleventh and First Circuits regarding dismissal
of civil actions on fugitive disentitlement grounds involving cases where the fugitive is
the plaintiff. The fugitive status must have a connection to the civil action, and the
dismissal must animate the concerns underlying the fugitive disentitlement doctrine.
See Walsh v. Walsh, 221 F.3d 204, 215 (1st Cir. 2000), cert. denied, 121 S. Ct. 1113
(2001) (citing Magluta v. Samples, 162 F.3d 662, 664 (11th Cir. 1998) (per curiam)).


         On the facts before us, we hold that the fugitive disentitlement doctrine does not
apply.     Although Barnett was a fugitive for some time, there is no substantial
connection between Barnett's fugitive status and his current civil action. The district
court recognized that this civil case is completely separate from the sentence Barnett
was serving at the time of his escape. Further, dismissal is not necessary to effectuate
the concerns underlying the fugitive disentitlement doctrine.


     The district court found that Barnett's escape inconvenienced the court schedule
and wasted the court's time. We find no basis for this conclusion. The district court
was in no way inhibited from setting a trial date or ruling on the motions before it at the
time of Barnett's escape and subsequent return. His physical presence as a civil litigant
was not required at that time. But see Degen, 517 U.S. at 827 (recognizing appropriate
sanctions might be warranted against any uncooperative party if a civil litigant's failure
to appear results in non-compliance with a legitimate order of the court respecting
pleading, discovery, the presentation of evidence or other matters). At the time this

                                             -6-
case was dismissed, the district court merely surmised that delay might occur in the
future. The parties were waiting for a ruling on the motion for summary judgment
pending before the court. We fail to recognize how the court was delayed at all.


       The district court did not rest its opinion upon concerns of unenforceability or
the compromising of the criminal case by civil discovery mechanisms. Accordingly,
we need not address these concerns at this time.


III.   CONCLUSION


       As the Court noted in Degen, while "[t]here would be a measure of rough justice
in saying [that a fugitive] must take the bitter with the sweet, and participate in the
District Court either for all purposes or none . . . the justice would be too rough." Id.
at 829. It would be particularly harsh in this case because Barnett remained in contact
with his attorney in the civil matter, his presence was not required at any stage of the
proceedings at issue, and he has now returned to custody.


       The judgment of the district court is reversed, and the case is remanded for
further proceedings consistent with this opinion.


       A true copy.


             Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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