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Ballard v. Carlson

decided: August 10, 1989.

ROBERT S. BALLARD, PLAINTIFF-APPELLANT
v.
NORMAN A. CARLSON, DIRECTOR, BUREAU OF PRISONS; VOLUNTEERS OF AMERICA; GENE FINLEY, COMMUNITY PROGRAM MANAGER; GRETCHEN CROSLAND, ASSISTANT PROGRAM DIRECTOR; CURTIS BARNETT, COUNSELOR; CRISPUS BOSWORTH, RESIDENT MANAGER; RONNIE JAMES, RESIDENT EMPLOYEE; MICHAEL COHON, RESIDENT EMPLOYEE; GEORGE STEWART, RESIDENT EMPLOYEE; FRIENDS MEDICAL SCIENCE RESEARCH; SHARMAN SETH, PROGRAM DIRECTOR, DEFENDANT-APPELLEES



Appeal from the United States District Court for the District of Maryland, at Maryland. Norman P. Ramsey, U. S. District Court Judge. C/A 84-3433.

Powell, Associate Justice (Retired), United States Supreme Court, sitting by designation; Widener and Chapman, Circuit Judges.

Author: Powell

POWELL, Associate Justice:

Appellant Robert Ballard, formerly a federal prisoner, challenges the dismissal of his suit alleging due process violations by Bureau of Prisons officials and the staff of a Community Treatment Center where he served part of his sentence. We conclude that the district court properly dismissed the suit as to Community Program Manager Gene Finley, and that the court's later dismissal of appellant's suit for failure to follow a court order was within its discretion.

I.

A full statement of the facts is necessary. Appellant was convicted in 1978 in the United States District Court for the District of Maryland of interstate transportation of stolen goods, and was sentenced to eight years imprisonment. In 1983, he was transferred from the Federal Correctional Institution at El Reno, Oklahoma to a Community Treatment Center (CTC) operated by the Volunteers of America (VOA) in Baltimore. Appellant was scheduled for parole on November 8, 1983.

Between September and November 1983, appellant furnished three urine samples pursuant to the CTC's drug testing requirements. The samples were tested using the "EMIT system," a widely used screening technique. Each of the three samples showed marijuana use. In each instance, appellant was charged with unauthorized use of narcotics, and was subjected to disciplinary measures after hearings conducted by the Center Disciplinary Committee. As a result of the first two incidents, appellant lost certain privileges, and his parole date was delayed thirty days. After the third positive test, appellant was terminated from the CTC program, and he was returned to El Reno. He forfeited part of his statutory good time, resulting in further delay of his parole date. Appellant remained at El Reno until his parole in September 1984.

Appellant, proceeding pro se, initiated this litigation in the form of a petition for habeas corpus, filed in the District of Maryland on September 11, 1984. Appellant alleged that the disciplinary action violated his due process rights in that VOA staff members intentionally submitted false positive test results as part of an extortion plan directed at prisoners. He also asserted that the tests were negligently performed, contrary to the manufacturer's instructions, and that they were inaccurate. At the same time appellant filed the habeas petition, he brought suit under 42 U.S.C. § 1983 against the director of the Bureau of Prisons, the VOA, Community Program Manager Gene Finley, seven VOA employees, and the laboratory that had performed the drug tests. The district court later determined that the § 1983 suit actually sought relief under 28 U.S.C. §§ 1331 and 1361. This suit contained essentially the same allegations as the habeas petition, and sought compensatory and punitive damages.

The district court consolidated appellant's habeas petition and § 1331 suit in October 1984. Defendants Finley and Carlson filed a motion to dismiss both the petition and the suit, and appellant responded. In December, the district court discovered in a review of the file that only Carlson and Finley had been served with process. The court ordered that the other nine defendants be served, but this was not accomplished as to three VOA employees and the laboratory. In March 1985, the district court dismissed appellant's habeas petition as moot due to his release.

Defendants Carlson and Finley again moved to dismiss the § 1331 suit. The district court granted this motion, holding that appellant had not alleged any specific involvement of the defendants in the testing or the alleged extortion scheme. The court noted that Finley's involvement was confined to approval of the disciplinary actions taken on the basis of the testing, and it declined to impose liability for "relying on the EMIT test per se," holding that this reliance did not constitute a denial of due process. Jt. App. 174. The court noted that appellant "failed the test three straight times," and stated that Carlson and Finley "cannot be faulted for sending appellant back to jail following those results." Jt.App. 175.

The suit continued against the VOA defendants. Further motions were exchanged, and in December 1985, the district court referred the case to Magistrate Frederic N. Smalkin for further proceedings. The suit had at this point been pending for over a year. The Magistrate reviewed the case, and in a December 11, 1985 order stated that appellant had "utterly failed to make particularized allegations against [the] individual defendants" sufficient to allow them to mount a defense. Jt.App. 189. The Magistrate therefore ordered appellant to submit a "particularized statement reciting with specificity the facts upon which he relies, stated separately as to each defendant." Id. The Magistrate specifically warned appellant that failure to comply with this order would result in a recommendation that the district court dismiss the suit: "Plaintiff's failure to timely file such a statement and to serve it on [defendants] will result in my recommendation that this case be dismissed forthwith, with prejudice, for failure to obey an order of the court." Id.

Appellant did not file the statement within thirty days, nor did he file any request for extension of time. On January 15, 1986, the defendants moved for dismissal in accordance with the magistrate's order. On January 22, 1986, appellant filed a request, dated January 17, 1986, for a 30-day enlargement of time. Appellant stated that he had been placed in the hospital for chest pains, and that his house had been burglarized. The Magistrate on January 22 filed a report and a recommendation that the case be dismissed pursuant to his earlier order. The Magistrate based this recommendation on appellant's failure to file his motion for enlargement of time within the time set forth in the December 11 order, and on appellant's failure to specify the date and nature of his medical problems, the date of the burglary, and how these events would have interfered with his ability to file a timely response. Jt.App. 197-198. Appellant filed objections to the magistrate's report, stating that he was placed under a doctor's care on December 4, was hospitalized on December 9, and had been unable to work until December 31. He also stated that his house was burglarized on January 15.

The district court accepted the Magistrate's report and dismissed appellant's suit with prejudice. Jt.App. 203-207. The court found respondent's excuses meritless. The court noted that appellant was hospitalized two days before the Magistrate issued the December 11 order, and that appellant did not indicate how long he was hospitalized. Appellant returned to work on December 31, some fourteen days before the filing deadline. The court observed that the burglary did not occur until after the filing deadline had passed, and that appellant had given no ...


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