
    Joseph SEIBERT, #76649, Plaintiff, v. Sam JOHNSTON, Acting Warden, Oklahoma State Penitentiary, Defendant.
    No. 74-145-C.
    United States District Court, E. D. Oklahoma.
    Aug. 14, 1974.
    
      Joseph Seibert, pro se.
    Kay Karen Kennedy, Asst. Atty. Gen., Oklahoma City, Okl., for defendant.
   ORDER DISMISSING CAUSE OF ACTION AND COMPLAINT

MORRIS, District Judge.

Plaintiff, an inmate in the Oklahoma State Penitentiary, has brought this action under the Civil Rights Act, 42 U.S. C. § 1983, against the defendant, Sam Johnston, Acting Warden, complaining that acting under color of state law said defendant deprived plaintiff of certain of his civil rights in connection with his confinement as a prisoner in the Oklahoma State Penitentiary.

In particular plaintiff complains of certain orders relating to the classification of prisoners. He complains of an order dated December 1, 1973, and a letter dated December 26, 1973, dealing with maximum custody in the institution, which order and letter set forth the reasons for placing certain inmates in maximum custody and for depriving them of certain personal articles while being confined in the Oklahoma State Penitentiary. Plaintiff complains that he was placed in maximum custody pursuant to these directives and deprived of certain privileges, to-wit: that he was required to eat in his cell; that he was denied the opportunity to eat in the prison mess hall; that he was denied use of the visiting room and that he was denied an opportunity to work. He also complains that while in this status he was deprived of two radios and of a fan, which personal property he alleges constitute no security risk. He further alleges that he was denied a hearing before being placed in maximum custody status and denied an appeal from the application of the rule placing him in such status. He alleges that his confinement in maximum custody, the denial of a hearing and the taking of his personal property as aforementioned were in violation of his constitutional rights and requests a declaratory judgment by the Court that the acts of the defendant were in violation of plaintiff’s civil rights under the Constitution of the United States.

The defendant answered the complaint denying all of the allegations contained therein.

In his complaint plaintiff requested the Court to adjudicate the issues raised by the pleadings by way of summary judgment. Thereafter plaintiff filed on June 4, 1974, and again on July 15, 1974, motions for summary judgment. On July 2 and July 30 the Court entered orders denying the motions for summary judgment and stated that there were genuine issues of fact which could only be determined by way of trial.

The case was set for trial on August 9, 1974, and the State of Oklahoma voluntarily produced plaintiff in open court so that he could testify regarding his complaints. At the outset of the trial plaintiff again orally renewed his motion for summary judgment and requested the Court to consider in support of his motion an additional document dated July 1, 1974, signed by Harold E. Wilson, Acting Warden, entitled “Operations Memorandum.”

The Court advised the plaintiff that his first two motions for summary judgment had been denied for the reason that it was quite apparent that factual issues were raised by the pleadings which could only be determined after an evidentiary hearing; that the case had accordingly been set for trial on' this day and that this was plaintiff’s opportunity to testify in his own behalf concerning the factual matters set forth in his complaint. The plaintiff refused to testify in his own behalf and failed to produce any evidence in support of the allegations contained in his complaint. He again requested the Court to dispose of the matter by way of summary judgment.

It is abundantly clear that factual issues were raised by the pleadings. These include whether or not plaintiff was in fact placed in maximum custody, whether or not the defendant ordered the plaintiff to be placed in maximum custody, whether or not there was a hearing in connection with the confinement of the plaintiff in maximum custody, if he was so confined, and whether or not the plaintiff was deprived of personal property. It is thus apparent that the issues as raised by the pleadings could only be determined by an evidentiary hearing.

The plaintiff was afforded every opportunity to present evidence in his own behalf. He refused to do so and the defendant moved for dismissal. Rule 41(b) of the Federal Rules of Civil Procedure clearly authorizes dismissal for “failure of the plaintiff to prosecute.” The Court of Appeals for the Tenth Circuit has stated:

“There is no dispute about the applicable law. Both under Rule 41(b), F. R.Civ.P. and the inherent power of a judge, a case may be dismissed with prejudice for want of prosecution. The exercise of this power by the trial judge is discretionary and should be sustained upon appeal in the absence of abuse.” Davis v. Operation Amigo, Inc., 378 F.2d 101 (10th Cir. 1967).

See also Food Basket, Inc. v. Albertson’s, Inc., 416 F.2d 937 (10th Cir. 1969); Shotkin v. Westinghouse Electric & Mfg. Co., 169 F.2d 825 (10th Cir. 1948).

It has also come to the Court’s attention and the Court takes judicial notice of the fact that since this case came on for trial on August 9, 1974, plaintiff has escaped from the Oklahoma State Penitentiary at McAlester. Although the case at bar is a civil case it is not unlike the circumstance presented when a defendant in a criminal case who is free on bail pending an appeal becomes a fugitive from justice and flees the jurisdiction of the court. The Court of Appeals for the Tenth Circuit has quoted the opinion of the Supreme Court of the United States in Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L. Ed.2d 586 (1970) which is apropos in the case at bar: It is the Court’s view that in a civil rights case when plaintiff escapes from the institution to which he has been confined only two days subsequent to the day of trial, that he is also disentitled “to call upon the resources of the Court for determination of his claims.” And especially is this so when the essence of his complaint is that he was unjustifiably placed in a maximum custody confinement status.

“ ‘No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.’ ” United States v. O’Neal, 453 F.2d 344 (10th Cir. 1972).

For the reasons set forth herein plaintiff’s complaint and cause of action should be dismissed.

It is so ordered. 
      
      . See Appendix A.
     