USCA1 Opinion

March 9, 1993

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No.
No.
No.
No.
No.

92-1742
92-1743
92-1744
92-1745
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,
____________________
Richard C. McFarland, Supervising Counsel, Department of Correcti
____________________
on Memorandum of Law in Support of Motion for Summary Disposition,
appellees.
____________________
____________________

Per Curiam.
___________
currently

Appellant,

is imprisoned in

Correctional

Institute; he

first-degree

murder.

transferred

from

Correctional Center
administrative

William

Tyree, Jr.,

the Cedar Junction Massachusetts

is serving

On December
Cedar

M.

a life

27, 1988,

Junction

to

sentence for
appellant was

the

where he spent twenty-seven

segregation

unit.

On

February

Old

Colony

days in the
8,

1989,

appellant filed five separate complaints in the Massachusetts

district court concerning his
to and residence at Old Colony.
all

five

actions

for

lack

prison status and his transfer

The district court dismissed
of

prosecution.

brief

description of each action follows.

I.
_
1.

Appellant alleges

to Old Colony, prison

his television
under

officials refused to allow him

set with speakers; instead,

regulations apparently

earplugs or headphones.
post
____

facto
_____

because

that when he was transferred

violation

he was required,

promulgated

in 1983,

He claims that this

of

the

appellant had been

United

to use

use

rule was an ex
__

States

allowed the use

to

Constitution

of a television

set with speakers since the beginning of his incarceration in

1979.

He

also

infringed on the
an exception
television

maintained

that

his

civil

ground that the regulation

that allowed hearing-impaired

sets

with

speakers.

In

rights

were

did not contain

prisoners to use

this

action,

the

-2-

defendants were served with process.

in May 1989.

They filed their answer

2.

Because appellant had enemies at Old Colony and

because Old Colony lacked

that he

was forced

twenty-seven
appellant

a protection unit, appellant avers

into administrative segregation

days he spent at Old Colony.

claims that

Specifically, prison
appellant to bring
support.

He

sufficient

daily

he

was denied

officials
with him

further

proper medical

two knee braces

that

exercise and

"universal" weight machine.

During this time,

allegedly refused

alleged

did

for the

he
not

did
have

care.

to

allow

he needed
not

for

receive

access to

In addition to these complaints,

appellant states that the

prison officials refused to ensure

that all

being sent out, that

of his mail was

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"

chained

and threatened

to the bed.

with

None of

the

possibility of

the defendants named

being
in this

action were served with process.

3.
unit

he did

general

Appellant states
not have

population, to

personal belongings.
two-way window
monitor

that while in the segregation

access, as did

the prisoners

a footlocker in
He also claims that

which to

store his

defendants used a

and an electronic eavesdropping

sound gun to

all of appellant's visits with outsiders.

-3-

in the

As in the

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

discrimination in
his

had

made

the Massachusetts

involvement in

became known

he

as

this matter,

a legal

and

concerning

employee

prison system.

Due to

appellant asserts

that he

political troublemaker.

He

charges that he made defendants aware of the fact that due to

the

above allegations,

he had

enemies at

again asserts that

he needed to be placed

segregation at Old

Colony --

safe.

Old Colony.

He

in administrative

the only place

where he

felt

All of the defendants were served with process in this

action and they filed answers in May 1989.

5.
regulation,

Appellant
an inmate

security prison
attend

programs, and is
asserts

who refuses

loses work

vocational,

claims

under

to transfer

and

other

to attend

a
to

privileges, is not

educational

not allowed

that

prison
a lower

permitted to
institutional

church.

Appellant

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
notices

March

in all

11,

1992,

five actions

the

district

pursuant to

court

issued

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

month

extension of

assertions
the

this notice,
time.

appellant requested
He

based

an eight-

this request

on

his

that since the filing of the five actions in 1989

Department

appellant's legal

of

Corrections

papers and had

(DOC)
failed to

had

confiscated

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
dismissed the
appellant's

district court
five

actions.

allegation

confiscated.

It

denied appellant's

that

motion and

The

court accepted

his

legal

nonetheless

found

files

that

this

as

true

had

been

did

not

"satisfactorily explain" appellant's inaction and his failure

to communicate with the district court.

-5-

III.
___
A district
action
governed

for

want of

not

by

court's sua sponte power

___ ______
prosecution
rule

or

statute

necessarily vested in the courts

so

as to achieve the orderly

cases."

Link v.

is

Wabash R.R.

to dismiss an

"'an inherent

power,'

but

control

by

the

to manage their own affairs

and expeditious disposition of

Co.,

370 U.S.

626, 630-631

____
(1962)

________________

(footnote omitted).

prevent

undue delays

docket

congestion, and

defendant."
710,

"[T]his

in the

disposition of

the possibility

Zavala Santiago v.
________________

712 (1st

Cir.

"drastic sanctions,
district court,

1977).

necessary to
pending cases,

of harassment

Gonzalez Rivera,
_______________

However,

which should

in the

power is

553 F.2d

such dismissals

be employed only

careful exercise of

We review
prosecution

for

its discretion,

Internacional, Inc.
___________________
317

(1st Cir.

of

dismissals based on

discretion.

In conducting

examine all relevant circumstances.

lack of

Enlace Mercantil
_________________

v. Senior Indust., Inc., 848

_____________________

1988).

to it

Id. (footnote omitted).

___

sua sponte
___ ______

abuse

are

when the

determines that none of the lesser sanctions available

would truly be appropriate."

of a

F.2d 315,

this review,

we must

Asociacion de Empleados
_______________________

del Instituto de Cultura Puertorriquena v. Rodriguez Morales,

_______________________________________
_________________
538

F.2d 915, 916 n.2 (1st

factors we

consider are the

length and

type

of

Cir. 1976).

Among the pertinent

history of the

delay, the

-6-

nature

of

litigation, the
the

underlying

claims, the possible prejudice to defendants and the presence

of

an

adequate excuse

for

plaintiff's

inaction.

See
___

Carribbean Transp. Sys., Inc. v. Autoridad de las Navieras,

______________________________
__________________________
901 F.2d 196, 197 (1st Cir. 1990).
Turning
two
on

to the case at hand, we first note that in

of the actions, appellant never

the defendants named in

suffices for a finding of

made service of process

the complaints.

This in itself

lack of prosecution.

two out of the three actions in which

See id.
___ ___

In

service of process was

accomplished, appellant took no steps to further the progress

of the
one

actions after the answers were filed in 1989.

action

filing of

where the

the defendants'

for admissions
the

proceedings

did

advance beyond

answers, appellant

to the DOC in

In the

July 1990.

Thus,

the

sent requests
by the time

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
the

case at

prosecution.
Cir.

1987).

hand,

record of delay "measured in years," as in

will support

dismissal for

want

of

See Cosme Nieves v. Deshler, 826 F.2d 1, 2 (1st

___ ____________
_______
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

Specifically,

with

his

personal

he states that he

papers

and

mail.

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
there is

pursued his
no evidence

court in any
reference

complaints within the

that appellant contacted

way to alert it to his

to

prison system,

a protective

order

the district

difficulties.
is

in papers

The only
concerning

another action filed by appellant in the district court.

We

find appellant's

such long delays

light of
difficulty

in the

prosecution of these

appellant's knowledge
in

pursuing

alleged obstructive
to the district

excuse inadequate

in 1989 that

his complaints

conduct, he was in a

court for

relief.

See

due

to explain

actions.
he would

In
have

to defendants'

position to appeal
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
to

proceed on

day

of trial,

was, as a result, unable

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
This

supporting dismissal

is not a case

for failure

where, although a

to prosecute).

significant amount of

time had passed between

the filing of the complaint

dismissal

prosecution, the

for want

acted to advance

of

the case.

See Richman
___ _______

and the

parties diligently
v. General Motors
_______________

-8-

Corp.,
_____

437

actively
sanction).

F.2d 196,

pursued

199

action,

(1st Cir.
outright

1971)

(where parties

dismissal

too harsh

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

relief.

Indeed, his request for

time in response
the

dilatory manner.

In

harsh a sanction.
in

an eight-month extension of

appellant

will continue

discovery,

act in

not too

this action

to defendants.

the district court abused its

Fed. R.

Thus,

we

discretion in

Civ. P.

41(b) and

Local Rule 41.1.

The judgments of the district court are affirmed.
________

-9-

We

underlying claims

long pendency of

on prejudice

complaints under

although not

ground for dismissal).

merits of appellant's

and that the

has likely resulted

dismissing the

of

a sufficient

that the

cannot say that

to

such a situation, dismissal is

availing himself

are questionable

only highlights

See Medeiros, 621 F.2d at 470-71 (delay by

___ ________

"contumacious," is
also note

district court for

to the notice of dismissal

likelihood that

plaintiff

applying to the