
USCA1 Opinion

	




        March 9, 1993           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1742        No. 92-1743        No. 92-1744        No. 92-1745        No. 92-1746                                 WILLIAM M. TYREE, JR.,                                Plaintiff, Appellant,                                          v.                               MICHAEL V. FAIR, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ____________________            William M. Tyree, Jr. on brief pro se.            _____________________            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        Richard C. McFarland,  Supervising Counsel, Department  of Correction,        ____________________        on Memorandum of Law in Support of Motion for Summary Disposition, for        appellees.                                 ____________________                                 ____________________                      Per  Curiam.   Appellant,  William  M.  Tyree, Jr.,                      ___________            currently  is imprisoned in  the Cedar Junction Massachusetts            Correctional  Institute; he  is serving  a life  sentence for            first-degree  murder.   On December  27, 1988,  appellant was            transferred   from   Cedar   Junction  to   the   Old  Colony            Correctional Center  where he spent twenty-seven  days in the            administrative  segregation  unit.    On  February  8,  1989,            appellant filed five separate complaints in the Massachusetts            district court concerning his  prison status and his transfer            to and residence at Old Colony.  The district court dismissed            all  five  actions   for  lack  of  prosecution.     A  brief            description of each action follows.                                          I.                                          _                      1.  Appellant alleges  that when he was transferred            to Old Colony, prison  officials refused to allow him  to use            his television  set with speakers; instead,  he was required,            under  regulations apparently  promulgated  in 1983,  to  use            earplugs or headphones.   He claims that this  rule was an ex                                                                       __            post  facto  violation  of  the  United  States  Constitution            ____  _____            because  appellant had been  allowed the use  of a television            set with speakers since the beginning of his incarceration in            1979.    He  also  maintained  that  his  civil  rights  were            infringed on the  ground that the regulation  did not contain            an exception  that allowed hearing-impaired  prisoners to use            television  sets   with  speakers.    In   this  action,  the                                         -2-            defendants were served with process.  They filed their answer            in May 1989.                      2.  Because appellant had enemies at Old Colony and            because Old Colony lacked  a protection unit, appellant avers            that he  was forced  into administrative segregation  for the            twenty-seven  days he spent at Old Colony.  During this time,            appellant  claims that  he  was denied  proper medical  care.            Specifically, prison  officials  allegedly refused  to  allow            appellant to bring  with him  two knee braces  he needed  for            support.    He  further  alleged  that  he  did  not  receive            sufficient  daily  exercise and  did  not  have  access to  a            "universal" weight machine.  In addition to these complaints,            appellant states that the  prison officials refused to ensure            that all  of his mail was  being sent out, that  the transfer            made it difficult for him to receive visitors and that, after            "punching out" two glass windows, appellant was placed in the            "nut  room"  and threatened  with  the  possibility of  being            chained  to the bed.   None of  the defendants named  in this            action were served with process.                      3.  Appellant states  that while in the segregation            unit  he did  not have  access, as did  the prisoners  in the            general  population, to  a footlocker in  which to  store his            personal belongings.   He also claims that  defendants used a            two-way window  and an electronic eavesdropping  sound gun to            monitor  all of appellant's visits with outsiders.  As in the                                         -3-            previously   described  action,  appellant  failed  to  serve            defendants with his complaint.                      4.  In the fourth complaint, appellant alleges that            in 1985 he was transferred to a higher security prison as the            result  of   allegations  he  had  made  concerning  employee            discrimination in  the Massachusetts  prison system.   Due to            his  involvement in  this matter,  appellant asserts  that he            became known  as  a legal  and  political troublemaker.    He            charges that he made defendants aware of the fact that due to            the  above allegations,  he had  enemies at  Old Colony.   He            again asserts that  he needed to be placed  in administrative            segregation at Old  Colony --  the only place  where he  felt            safe.  All of the defendants were served with process in this            action and they filed answers in May 1989.                      5.      Appellant  claims   that  under   a  prison            regulation,  an inmate  who refuses  to transfer  to  a lower            security prison  loses work  privileges, is not  permitted to            attend  vocational,  educational   and  other   institutional            programs, and is  not allowed  to attend  church.   Appellant            asserts  that he lost the above privileges due to his refusal            to transfer to  a medium  security prison.   In this  action,            appellant served the defendants and in 1990 sent requests for            admissions to them.                                         -4-                                         II.                                         __                      On  March  11,  1992,  the  district  court  issued            notices  in all  five actions  pursuant to  Local Rule  41.1.            This rule provides:                           (a)(1)  Whenever in any civil action                      the   clerk   shall  ascertain   that  no                      proceeding has been docketed  therein for                      a period  of ONE (1) year,  he shall then                      mail  notice  to  all  persons  who  have                      entered  an  appearance  in such  a  case                      that,  subject  to   the  provisions   of                      subsection  (a)(3),  the  case   will  be                      dismissed  without further  notice thirty                      (30)  days  after  the  sending   of  the                      notice.            In  response to  this notice,  appellant requested  an eight-            month  extension of  time.   He  based  this request  on  his            assertions  that since the filing of the five actions in 1989            the  Department   of   Corrections  (DOC)   had   confiscated            appellant's legal  papers and had  failed to  return them  to            appellant, had opened appellant's  legal mail, had denied him            access to the law library during "lock downs" and had made it            difficult for him to obtain typewriting materials.                      The  district court  denied appellant's  motion and            dismissed the  five  actions.   The  court accepted  as  true            appellant's  allegation   that  his  legal  files   had  been            confiscated.    It  nonetheless   found  that  this  did  not            "satisfactorily explain" appellant's inaction and his failure            to communicate with the district court.                                         -5-                                         III.                                         ___                      A district  court's sua sponte power  to dismiss an                                          ___ ______            action  for  want of  prosecution  is  "'an inherent  power,'            governed  not   by  rule  or  statute  but   by  the  control            necessarily vested in the courts  to manage their own affairs            so  as to achieve the orderly  and expeditious disposition of            cases."    Link v.  Wabash R.R.  Co.,  370 U.S.  626, 630-631                       ____     ________________            (1962)  (footnote omitted).   "[T]his  power is  necessary to            prevent  undue delays  in the  disposition of  pending cases,            docket  congestion, and  the possibility  of harassment  of a            defendant."   Zavala  Santiago v.  Gonzalez Rivera,  553 F.2d                          ________________     _______________            710,  712 (1st  Cir.  1977).   However,  such dismissals  are            "drastic sanctions,  which should  be employed only  when the            district court,  in the  careful exercise of  its discretion,            determines that none of the lesser sanctions available  to it            would truly be appropriate."  Id. (footnote omitted).                                          ___                      We review  sua sponte  dismissals based on  lack of                                 ___ ______            prosecution  for  abuse  of  discretion.    Enlace  Mercantil                                                        _________________            Internacional, Inc.  v. Senior  Indust., Inc., 848  F.2d 315,            ___________________     _____________________            317  (1st Cir.  1988).   In conducting  this review,  we must            examine all relevant circumstances.   Asociacion de Empleados                                                  _______________________            del Instituto de Cultura Puertorriquena v. Rodriguez Morales,            _______________________________________    _________________            538  F.2d 915, 916 n.2 (1st  Cir. 1976).  Among the pertinent            factors we  consider are the  history of the  litigation, the            length and  type  of  delay, the  nature  of  the  underlying                                         -6-            claims, the possible prejudice to defendants and the presence            of  an  adequate excuse  for  a  plaintiff's  inaction.   See                                                                      ___            Carribbean Transp.  Sys., Inc. v. Autoridad  de las Navieras,            ______________________________    __________________________            901 F.2d 196, 197 (1st Cir. 1990).                      Turning  to the case at hand, we first note that in            two  of the actions, appellant never  made service of process            on  the defendants named in  the complaints.   This in itself            suffices for a finding of  lack of prosecution.  See id.   In                                                             ___ ___            two out of the three actions in which  service of process was            accomplished, appellant took no steps to further the progress            of the  actions after the answers were filed in 1989.  In the            one  action  where the  proceedings  did  advance beyond  the            filing of  the defendants'  answers, appellant  sent requests            for admissions  to the DOC in  July 1990.  Thus,  by the time            the  Local Rule 41.1 notice was sent in March 1992, appellant            had done nothing  in four of the cases for almost three years            and in the fifth case for well over one year.                      A clear  record of delay "measured in years," as in            the  case at  hand,  will support  a  dismissal for  want  of            prosecution.  See Cosme Nieves v. Deshler, 826 F.2d 1, 2 (1st                          ___ ____________    _______            Cir.  1987).    Appellant  asserts  on  appeal  that  he  did            "everything possible" to alert the DOC and the district court            to the problem of the missing legal files and interference by            prison  officials   with  his  personal   papers  and   mail.            Specifically,  he states that he  filed a protective order in                                         -7-            the  district  court  in  1990.   To  support  his  position,            appellant refers to the first addendum to his brief.  While a            review of the material included in addendum #1 indicates that            appellant  pursued his  complaints within the  prison system,            there is  no evidence  that appellant contacted  the district            court in any  way to alert it to his  difficulties.  The only            reference  to  a protective  order  is  in papers  concerning            another action filed by appellant in the district court.                      We  find appellant's  excuse inadequate  to explain            such long delays  in the  prosecution of these  actions.   In            light of  appellant's knowledge  in 1989 that  he would  have            difficulty  in  pursuing  his complaints  due  to defendants'            alleged obstructive  conduct, he was in a  position to appeal            to the district  court for  relief.  See  Medeiros v.  United                                                 ___  ________     ______            States, 621  F.2d 468, 470  (1st Cir. 1980)  (where plaintiff            ______            knew about unavailability of expert witness for approximately            five months prior to trial date and  was, as a result, unable            to  proceed on  day  of trial,  dismissal warranted);  Zavala                                                                   ______            Santiago, 553 F.2d at 713 (initial burden to go forward is on            ________            plaintiff  and failure to alert district court to problems is            one factor  supporting dismissal  for failure  to prosecute).            This  is not a case  where, although a  significant amount of            time had passed between  the filing of the complaint  and the            dismissal  for want  of  prosecution, the  parties diligently            acted to advance  the case.   See Richman  v. General  Motors                                          ___ _______     _______________                                         -8-            Corp.,  437  F.2d 196,  199  (1st Cir.  1971)  (where parties            _____            actively  pursued  action,  outright  dismissal  too harsh  a            sanction).  Rather, appellant essentially did nothing.                      In light of his ability, as the district noted  and            appellant himself acknowledges, to  pursue his other  federal            actions, his inertia in these cases becomes less supportable.            Although appellant's conduct  cannot be called  contumacious,            it is plain that he has unreasonably delayed in advancing his            causes  of action and in  applying to the  district court for            relief.  Indeed, his request for  an eight-month extension of            time in response  to the notice of dismissal  only highlights            the  likelihood that  appellant  will continue  to  act in  a            dilatory manner.  In  such a situation, dismissal is  not too            harsh a sanction.  See Medeiros, 621 F.2d at 470-71 (delay by                               ___ ________            plaintiff  in  availing himself  of  discovery,  although not            "contumacious," is  a sufficient  ground for dismissal).   We            also note  that the  merits of appellant's  underlying claims            are questionable  and that the  long pendency of  this action            has likely resulted  on prejudice  to defendants.   Thus,  we            cannot say that  the district court abused its  discretion in            dismissing the  complaints under  Fed. R.  Civ. P.  41(b) and            Local Rule 41.1.                      The judgments of the district court are affirmed.                                                              ________                                         -9-
