Arthur Hannah, Appellant, v. United States of America, Appellee, 410 F.2d 1049 (D.C. Cir. 1969)

Appellant is a federal prisoner incarcerated and receiving treatment in the Medical Center for Federal Prisoners at Springfield, Missouri. He appeals in forma pauperis from the dismissal for want of prosecution of his complaint under the Federal Tort Claims Act,¹  28 U.S.C. §§ 1346(b), 2671 et seq. The background of the case may be stated as follows:

During September, 1962, appellant was committed²  to St. Elizabeths Hospital for mental examination. He alleges in his complaint, filed in September, 1964, in our District Court that while committed to St. Elizabeths Hospital he suffered injuries to his head when struck by a bedside locker he was moving at the direction of a ward attendant, and that negligence of employees of the hospital was a cause of these injuries. He further alleges that employees of the various federal institutions in which he has since been incarcerated negligently failed to diagnose and properly treat his injuries, thereby resulting in permanent-total vision impairment.

In January, 1966, he sought an order compelling the United States to transfer him to Washington for a physical examination. The pre-trial examiner recommended denial but without prejudice to renewal if other arrangements proved ineffectual.³  There is no indication other arrangements were sought. Appellant's counsel certified the case as ready for trial in August, 1966. At a pre-trial conference in February, 1967, his counsel was directed to take up with the Assignment Judge the matter of producing appellant for trial, which was set for January 11, 1968. On January 8, 1968, though he had not taken the matter up with the Assignment Judge, counsel again moved to compel appellant's production for trial. In its opposition the United States pointed out that the action was not brought in forma pauperis. The motion was denied on February 9, 1968, and trial was rescheduled for February 23, 1968. On that date counsel renewed the motion previously denied and, in the alternative, moved for leave to take appellant's deposition for use at trial.⁴  Upon oral motion of the United States, the District Court denied appellant's motions and dismissed the case for want of prosecution.

Based upon the situation as it thus appeared to the District Court we cannot hold that the court abused its discretion in dismissing the action. A development since then, however, gives a somewhat different complexion to the case, and leads us to resort to the authority granted by 28 U.S.C. § 2106⁵  to give an opportunity to counsel to obtain consideration of the case on the merits if this may be accomplished through his efforts to obtain the deposition of appellant. On February 23, 1968, he requested leave to do so, without, however, then proceeding in forma pauperis. The development referred to is that since the District Court dismissed the complaint by the order on appeal, appellant has obtained the status of a pauper. He prosecutes the appeal in forma pauperis. While the authority of our court under 28 U.S.C. § 2106 is to be exercised sparingly, guided by principles grounded in law and equity, we think this case presents an occasion for its exercise. There is a natural concern due to the fact that in seeking consideration of his complaint appellant has been seriously handicapped by his incarceration in Springfield, Missouri, by his mental condition and by the difficulties thus posed for his counsel.⁶  Having acquired the right to proceed in forma pauperis, a status we may assume he can sustain now in the District Court, he may be able to obtain the assistance needed to place his evidence in deposition form, which he has been unable to do because of lack of resources. To give him the opportunity to take advantage of his present status, we vacate the order of dismissal and remand the case. The District Court under its authority, which includes Rule 26(a), note 4, supra, can extend to appellant — we assume counsel will assure the court of his willingness to act with expedition, for the case has been pending since 1964 — opportunity within a reasonable period of time, to be fixed by the court, to obtain the deposition of appellant at the Springfield institution with the assistance of such public agencies as can be enlisted, or such other assistance as can be made available. If successful in this the District Court could set the case for trial or otherwise dispose of it as the court should decide to be mete and proper. We do not preclude the possibility that the United States might be able to make appellant personally available, or otherwise assist in obtaining a decision on the merits.

It is so ordered.