OpenJurist

991 F2d 788 Dudonis v. L Robinson

991 F.2d 788

Charles Lee DUDONIS, Plaintiff-Appellant,
v.
Bishop L. ROBINSON, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Lawrence Edward Beyer, Jr., Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Gary L. Montgomery, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
William Troy Walter, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Patrick E. O'Neill, JR., Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
James E. Mauzone, Jr., Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Glenn L. Lewis, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Tony Lee Green, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Joseph Louis, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Ronnie Johnson, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Sherman Bryant, Jr., Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Adrian Ward, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Herbert L. Mack-Bey, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Leon Smith, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Wali S.J. Aquil, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
James W. Payne, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Terry Kearney, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Clifton Dobbins, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Derek Birckhead, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Frank W. Parker, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Timothy Bell, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Louis D. Scarlett, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Charles J. Hill, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Alvin Faulkner, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard Lanham,
Sr., Commissioner of Correction; Sewall Smith,
Warden, Maryland Penitentiary,
Defendants-Appellees.
Joseph K. Kirby, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Paul Rodgers, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Johnny Reynolds, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Howard E. Simms, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Edward Glenn Dunn, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall Smith,
Warden, Maryland Penitentiary, Defendants-Appellees. Melvin
Kisamore, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Phillip G. Johnson, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
George D. Willoughby, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Gerald T. Parkey, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary;
Theodore Purnell, Security
Chief, Defendants-Appellees.
Jerome Wallace, Jr., Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Seymour Hall, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.
Farrakhan Bey, Plaintiff-Appellant,
v.
Bishop L. Robinson, Public Safety Secretary; Richard
Lanham, Sr., Commissioner of Correction; Sewall
Smith, Warden, Maryland Penitentiary,
Defendants-Appellees.

Nos. 91-6696, 91-6697, 91-6698, 91-6699, 91-6700, 91-6701,
91-6702, 91-6703, 91-6704, 91-6705, 91-6706, 91-6707,
91-6708, 91-6709, 91- 6710, 91-6711, 91-6712, 91-6713,
92-6029, 92-6030, 90-6031, 92-6032, 92-6033, 92-6034,
92-6035, 92-6036, 92-6037, 92-6038, 92-6039, 92-6056,
92-6106, 92-6107, 92-6108, 92-6135, 92-6136, 92-6165.

United States Court of Appeals,
Fourth Circuit.

Submitted: December 16, 1992
Decided: April 26, 1993

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeals from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (CA-91-2434-JFM, CA-91-2435-JFM, CA-91-2436-JFM, CA-912437-JFM, CA-91-2438-JFM, CA-91-2439-JFM, CA-91-2442-JFM, CA-91-2444-JFM, CA-91-2445-JFM, CA-91-2447-JFM, CA-912448-JFM, CA-91-2450-JFM, CA-91-2451-JFM, CA-91-2462-JFM, CA-91-2537-JFM, CA-91-2538-JFM, CA-91-2597-JFM, CA-912704-JFM, CA-91-2452-JFM, CA-91-2685-JFM, CA-91-2835-JFM, CA-91-2441-JFM, CA-91-2533-JFM, CA-91-2794-JFM, CA-912453-JFM, CA-91-2443-JFM, CA-91-2595-JFM, CA-91-2446-JFM, CA-91-2573-JFM, CA-91-2596-JFM, CA-91-2440-JFM, CA-912449-JFM, CA-91-2651-JFM, CA-91-2539-JFM, CA-91-2640-JFM, CA-91-2986-JFM)

Charles Lee DuDonis, Lawrence Edward Beyer, Jr., Gary L. Montgomery, William Troy Walter, Patrick E. O'Neill, Jr., James E. Mauzone, Jr., Glenn L. Lewis, Tony Lee Green, Joseph Louis, Ronnie Johnson, Sherman Bryant, Jr., Adrian Ward, Herbert L. Mack-Bey, Leon Smith, Wali S.J. Aquil, James W.Payne, Terry Kearney, Clifton Dobbins, Derek Birckhead, Frank W. Parker, Timothy Bell, Louis D. Scarlett, Charles J. Hill, Alvin Faulkner, Joseph K. Kirby, Paul Rodgers, Johnny Reynolds, Howard E. Simms, Edward Glenn Dunn, Melvin Kisamore, Phillip G. Johnson, George D. Willoughby, Gerald T. Parkey, Jerome Wallace, Jr., Seymour Hall, Farrakhan Bey, Appellants Pro Se. John Joseph Curran, Jr., Attorney General, Richard Bruce Rosenblatt, Assistant Attorney General, Baltimore, Maryland, for Appellees.

D.Md.

AFFIRMED.

Before HALL, WILKINS, and WILLIAMS, Circuit Judges.

PER CURIAM:

OPINION

1

Plaintiffs in these consolidated cases appeal from orders of the district court denying relief under 42 U.S.C. § 1983 (1988). We affirm.

2

On July 16, 1991, a riot took place at the Maryland Penitentiary in Baltimore, Maryland. During the riot a number of inmates gained control of "C-Block" and held authorities at bay for approximately twenty-two hours. After the rioting inmates were subdued, all inmates of C-Block were evacuated and either transferred to other cells or moved into the "yard." A thorough search of the cells in C-Block was then conducted. The contents of each cell were removed, placed into boxes, and transported to a warehouse. The material in the boxes was then inventoried and searched. If the search revealed contraband the material was segregated; permissible items were then returned to the inmate and the inmate was allowed to determine what was to be done with items that were not permitted. All inmates were returned to CBlock by July 26, and all property was returned to the inmates by August 29.

3

Each of the Plaintiffs filed a separate civil action raising Eighth Amendment claims arising from the riot itself and conditions of confinement occasioned by the riot. Plaintiffs also raised due process and access to the courts claims concerning the destruction of their personal property. In one case, Parkey v. Robinson, the Plaintiff also alleged an Eighth Amendment denial of medical care claim. All of the actions were consolidated with DuDonis v. Robinson in the district court.

4

The Defendants moved to dismiss or in the alternative for summary judgment. Roseboro1 notice was sent to the Plaintiffs. Plaintiffs filed a motion to extend the time in which to respond and filed a response the following day. The district court denied the Plaintiffs' motion to extend time and granted the Defendants' motion as to all claims except Parkey's inadequate medical care claim. A final order denying relief in Parkey's case was filed by the district court on January 8, 1992, and was entered on the docket on January 20.

5

At the outset, we conclude that we have jurisdiction over all of these appeals. A majority of the Plaintiffs filed notices of appeal after the district court entered its order in DuDonis . Generally, this Court has jurisdiction only over appeals from final orders. Where a district court's order disposes of fewer than all claims against all parties, it is not final. Fed. R. Civ. P. 54(b). Because the district court's order in DuDonis, the lead case in the district court, did not resolve all claims against all parties in the consolidated actions, it was not a final order. However, the Circuits are split as to whether, when two or more actions have been consolidated for trial, judgment in one is appealable while the other case or cases are still pending. Compare Trinity Broadcasting Corp. v. Eller, 827 F.2d 673, 675 (10th Cir. 1987) (judgments not separately appealable), cert. denied, 487 U.S. 1223 (1988); Huene v. United States, 743 F.2d 703, 704-05 (9th Cir. 1984) (same), with Kraft, Inc. v. Local 327, Teamsters, 683 F.2d 131, 133 (6th Cir. 1982) (per curiam) (judgments separately appealable); Federal Deposit Ins. Corp. v. Caledonia Inv. Corp., 862 F.2d 378, 381 (1st Cir. 1988) (same); see also Bergman v. City of Atlantic City, 860 F.2d 560, 566 (3d Cir. 1988) (adopting case by case approach); Sandwiches, Inc. v. Wendy's Int'l, Inc., 822 F.2d 707, 709-10 (7th Cir. 1987) (same); Ringwald v. Harris, 675 F.2d 768, 771 (5th Cir. 1982) (same).

6

We need not select the applicable rule because we have jurisdiction in each of these cases regardless of which rule is applied. Seven of the Plaintiffs filed timely notices of appeal after entry of the final order in Parkey. Another six filed new notices of appeal after the entry of the final order in Parkey, which were deemed timely filed by the district court. The remaining twenty-three Plaintiffs filed informal briefs with this Court within thirty days of the entry of judgment in Parkey. We conclude that these informal briefs contain sufficient information to constitute notices of appeal under Smith v. Barry, 60 U.S.L.W. 4065, 4067 (U.S. 1992).

7

Turning to the issues raised by Plaintiffs on appeal, we conclude that the district court did not abuse its discretion in denying the Plaintiffs' motion for extension of time. The Plaintiffs moved for an extension of time within which to respond to the Defendants' motion for summary judgment.2 On the next day, Plaintiffs filed a response to the motion. Though the Plaintiffs may have shown sufficient basis for an extension under Fed. R. Civ. P. 6(B)(1), we find that because the Plaintiffs in fact filed a response the following day, the district court did not abuse its discretion in denying the motion.

8

Likewise, we conclude that the district court did not abuse its discretion in refusing to appoint counsel. Though the consolidation of such a large number of cases increased the procedural complexity somewhat, we conclude that the underlying issues raised by the Plaintiffs were neither unusually complex, nor of the type that the Plaintiffs were not equipped to present pro se. Accordingly, exceptional circumstances requiring the appointment of counsel were not present. See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984).

9

We affirm the denial of relief on the merits of the Plaintiffs' claims on the reasoning of the district court. DuDonis v. Robinson, No. CA91-2434-JFM (D. Md. Nov. 21, 1991); Parkey v. Robinson, No. CA91-2651-JFM (D. Md. Jan. 20, 1992).

10

In conclusion, the orders of the district court are affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED

1

Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975)

2

Though there is no corresponding entry in the district court's docket, Plaintiffs contend that two motions for extension of time were actually filed. The first was drafted by the Plaintiffs pro se, and the second was drafted with the assistance of an attorney. Though the motion drafted with the assistance of counsel is the only one entered in the district court record, the district court's opinion appears to address the motion prepared by the plaintiffs without the attorney's assistance