OpenJurist

613 F2d 114 Harrelson v. United States

613 F.2d 114

Paul Louis HARRELSON, Plaintiff-Appellant,
v.
UNITED STATES of America et al., Defendants-Appellees.

No. 79-1234

Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

March 7, 1980.

James Q. Smith, Wichita Falls, Tex., for plaintiff-appellant.

Wm. L. Johnson, Jr., Asst. U. S. Atty., Fort Worth, Tex., for Federal defendants-appellees.

Richard E. Whinery, Dallas, Tex., for Taylor and Miller.

James H. Martin, David C. McCord, Jr., pro se.

Charles J. Baldree, Asst. Dist. Atty., Dallas, Tex., for Jones, Wade and Walker.

Lonny D. Morrison, Wichita Falls, Tex., for U-Tote-M, Inc.

Robert E. Diaz, Asst. City Atty., Arlington, Tex., for Robert L. Parsons.

Appeal from the United States District Court for the Northern District of Texas.

Before RONEY, KRAVITCH and TATE, Circuit Judges.

PER CURIAM:

1

Appellant Harrelson appeals from the dismissal of his complaint for failure to prosecute and an injunction preventing him from instituting any further action based on the facts which were alleged in the complaint, including any causes of action which could have been asserted as well as those which were asserted. We affirm.

2

On December 14, 1978, an Order to Show Cause why Civil Action # 7-77-3 should not be dismissed for want of prosecution was entered, and a hearing on the order was set for January 5, 1979. On January 3, 1979, Harrelson filed a motion for continuance citing as reasons inclement weather and his health. Without a ruling on the plaintiff's motion, the hearing was held on January 5. Plaintiff did not appear although the district court's failure to rule on the motion for continuance did not relieve him of his duty to appear, Hepperle v. Johnston, 590 F.2d 609 (5th Cir. 1979). The district court dismissed the complaint.

3

A dismissal under Rule 41(b), Fed.R.Civ.P., for failure to prosecute acts as an adjudication on the merits, and thus should be used sparingly and only when less drastic alternatives have been explored. Hepperle v. Johnston, 590 F.2d 609 (5th Cir. 1979); Ramsay v. Bailey, 531 F.2d 706 (5th Cir. 1976), Cert. denied, 429 U.S. 1107, 97 S.Ct. 1139, 51 L.Ed.2d 559 (1977); Murrah v. Fire Insurance Exchange, 480 F.2d 613 (5th Cir. 1973). In this case the last pleading prior to the Show Cause Order was filed on March 7, 1977, 22 months before the dismissal. Dismissals for failure to prosecute are reviewable only for abuse of discretion. Graves v. Kaiser Aluminum & Chemical Co., 528 F.2d 1360 (5th Cir. 1976). In light of the significant inactivity of the plaintiff, we cannot say the district court abused its discretion in dismissing the complaint.

4

In addition to dismissing the complaint for failure to prosecute, the district court enjoined any future litigation on any cause of action arising from the fact situation at issue in this case. Such orders are generally unnecessary, as res judicata and collateral estoppel are usually more than adequate to protect defendants against repetitious litigation. A litigious plaintiff pressing a frivolous claim, though rarely succeeding on the merits, can be extremely costly to the defendant and can waste an inordinate amount of court time. In this case, the plaintiff has forced various defendants in and out of court for almost five years and has had a full opportunity to present and litigate his claims. (See attached Appendix for a chronological history of this litigation.)

5

The district court has the power under 28 U.S.C. § 1651(a) to enjoin litigants who are abusing the court system by harassing their opponents. Ruderer v. United States, 462 F.2d 897 (8th Cir.), Appeal dismissed, 409 U.S. 1031, 93 S.Ct. 540, 34 L.Ed.2d 482 (1972); Hill v. Estelle, 423 F.Supp. 690 (S.D.Tex.), Aff'd without opinion, 543 F.2d 754 (5th Cir. 1976). Considering the history of this case, we cannot say the entry of such an injunction was an abuse of discretion.

6

AFFIRMED.

Appendix

7

11/30/72 Harrelson sentenced to four years confinement

8

after being convicted of conspiracy

9

to cause stolen goods and forged securities

10

to be transported in interstate commerce

11

11/30/73 5th Circuit affirms conviction. United

12

States v. Harrelson, 477 F.2d 383 (5th Cir.

13

1973).

14

12/ 3/73 Supreme Court denied rehearing, 414 U.S.

1086, 94 S.Ct. 608, 38 L.Ed.2d 492, on its

15

denial of certiorari, 414 U.S. 847, 94 S.Ct.

16

133, 38 L.Ed.2d 95.

17

12/10/73 Harrelson began serving his sentence

18

3/28/75 Harrelson, pro se, filed suit in district

19

court, N.D.Tex., Ft. Worth Division. The

20

case was designated Civ. No. 4-75-95.

21

Named as defendants were: United States,

Judge Sarah Hughes, Richard Stephens

22

(Assistant United States Attorney), William

Garvie (FBI agent), John Doe Gibson

23

(FBI agents) and other unknown to plaintiff

5/ 7/75 Harrelson paroled

24

7/ 3/75 Harrelson amended Civ. No. 4-75-95 to

25

add as party defendants: State of Texas,

26

County of Dallas, Dallas County Sheriff,

Dallas County District Attorney, Dallas

27

Morning News, Dallas Bar Association,

City of Dallas, City of Dallas Police

Department, City of Arlington, City of

Arlington Police Department

28

9/30/75 Harrelson, pro se, files a Sec. 2255 motion to

29

vacate in district court, N.D.Tex., Dallas

30

Division. It was designated Civ. No. 3-75-

1202B.

31

12/23/75 Civ. No. 4-75-95 transferred to Dallas

Division and renumbered Civ. No. 3-76-359F

32

3/ 5/76 Judge Hughes adopts Magistrate Mulloy's

33

recommendations and dismisses Harrelson's

Sec. 2255 petition, Civ. No. 3-75-1202B

34

4/14/76 Harrelson files Notice of Appeal from

Judge Hughes' order

35

5/ 5/76 Judge Porter dismisses Judge Hughes and

Assistant United States Attorneys Stephens

36

and Sanderson from Civ. No. 3-76-359F

37

8/26/76 Judge Porter dismisses State of Texas,

Dallas County, Dallas County District

38

Attorney, Dallas Morning News, City of Dallas,

City of Dallas Police Department, City

39

of Arlington, and City of Arlington Police

Department from Civ. No. 3-76-359F

40

1/19/77 Harrelson, pro se, files the suit at issue on

41

this appeal in N.D.Tex., Dallas Division.

It was designated Civ. No. 7-77-3 and

42

named 49 defendants. The defendants

43

were: William Garvie, Richard Stephens,

Patrick Mulloy, Emory Horton, Gordon

44

Shanklin, Clarence Jones, Robert Parsons,

David McCord, United States, United

45

States Department of Justice, Federal Bureau

46

of Investigation, U.S. Civil Service

47

Commission, Traveler's Express Company,

48

Inc., Consumer's Money Order Corp.,

49

Judge Frank D. McCown, Judge Sarah T.

Hughes, Judge Henry Wade, Judge Robert

M. Hill, Judge William M. Taylor, Judge

Eldon B. Mahon, Harry Koch, Charles

50

Cabaniss, Michael Carnes, William Sanderson,

Emmett Colvin, William Johnson, Jerry

51

Birdwell, Joe Hendley, Judge Robert W.

52

Porter, James McKillip, David Ibbotson,

53

Bill Williams, Tom Moss, Mona Finley, Sallie

54

Teddlie, Joshua Taylor, M. L. Miller,

Argyle Tucker, Dee Walker, Gerhard

Kleinschmidt, Judge William Borg, William

Wuester, Joseph McElroy, Jr., Bailey

Rankin, Alex McGlinchey, Strasburger

55

Food Stores, Inc., U-Tote-M, Inc., Dallas,

Texas, Tucker Boat and Motor Co., James

Martin

56

2/16/77 Civ. No. 7-77-3 transferred to Judge

Higginbotham

57

2/24/77 5th Circuit affirms the dismissal of

58

Harrelson's Sec. 2255 petition. Harrelson v.

59

United States, 548 F.2d 353 (5th Cir. 1977).

60

3/ 2/77 Harrelson opposed motions to dismiss filed

61

in Civ. No. 7-77-3

62

12/27/77 Judge Porter dismissed the remaining

63

defendants in Civ. No. 3-76-359F with prejudice

64

on the alternative grounds of failure

65

to state a claim on which relief can be

66

granted and failure to prosecute

67

1/ 5/78 Harrelson appeals dismissal of Civ. No.

68

3-76-359F9/29/78 5th Circuit affirmed in part and vacated

69

and remanded in part the dismissal in Civ.

70

No. 3-76-359F, Harrelson v. United States,

582 F.2d 39 (5th Cir. 1978)

71

11/ 2/78 After reconsideration in light of 5th Circuit

72

order, Judge Porter again dismissed

Civ. No. 3-76-359F. That order was not

73

appealed.

74

12/14/78 Order to show case why Civ. No. 7-77-3

75

should not be dismissed for want of prosecution

76

entered.

77

1/ 3/79 Harrelson filed motion for continuance

78

1/ 5/79 Hearing held on show cause order. Civ.

79

No. 7-77-3 dismissed and injunction entered.

80

Note: The plaintiff's Sec. 2255 petition, Civ. No. 3-76-

359F and Civ. No. 7-77-3 all involve the same

81

basic claim. Harrelson contends he was denied

82

the right to a fair trial by a conspiracy among

83

the defendants which included the use of perjured

84

testimony at his trial.

*

Fed.R.App.P. 34(a); 5th Cir. R. 18