JACKIE WOLFINBARGER v. KENTUCKY DEPARTMENT OF CORRECTIONS, WALTER CHAPLEAU, WARDEN KENTUCKY STATE REFORMATORY, DOCTOR RISHI, DOCTOR MCCRACKLIN, NURSE RAISOR, and UNKNOWN EMPLOYEES & AGENTS OF KENTUCKY DEPARTMENT OF CORRECTIONS
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RENDERED:
August 13, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No. 1998-CA-001650-MR
JACKIE WOLFINBARGER
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DENNIS FRITZ, JUDGE
CIVIL ACTION NO. 97-CI-00458
v.
KENTUCKY DEPARTMENT OF CORRECTIONS,
WALTER CHAPLEAU, WARDEN KENTUCKY STATE REFORMATORY,
DOCTOR RISHI, DOCTOR MCCRACKLIN, NURSE RAISOR, and
UNKNOWN EMPLOYEES & AGENTS OF KENTUCKY DEPARTMENT
OF CORRECTIONS
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge:
Jackie Wolfinbarger brings this appeal from an
order of the Oldham Circuit Court dismissing his civil complaint
for failure to prosecute. We reverse and remand with directions to
reinstate the complaint.
On October 4, 1995, Wolfinbarger filed a pro se civil
complaint in Oldham Circuit Court naming the following defendants:
Jack
C.
Lewis,
Corrections;
commissioner
Walter
Chapleau,
of
the
warden
Kentucky
of
the
Department
Kentucky
of
State
Reformatory at LaGrange; Doctor Rishi, medical director at the
Kentucky State Reformatory at LaGrange; Nurse Raisor [sic], a nurse
at the Kentucky State Reformatory at LaGrange; Doctor McCracklin,
a doctor at the Kentucky State Reformatory at LaGrange; and unknown
employees and agents of the Kentucky Department of Corrections. In
the complaint, Wolfinbarger, who is a paraplegic, alleged that on
October 30, 1994, he received a severe burn on his back when Nurse
Resiner left him unattended for an extended period of time with a
heating pad on his back.
He alleged that Dr. McCracklin applied an
“unknown purple medication” to the burns, which worsened his
condition.
After the burns failed to heal, Wolfinbarger was
transported to a local hospital where he received a skin graft for
the
burn.
He
further
alleged
that
he
contracted
a
urinary
infection because of the prison hospital’s improper treatment of
the burns.
Wolfinbarger sought compensatory and punitive damages
from the defendants for their alleged negligent medical treatment.
Wolfinbarger also asserted that the defendants’ conduct violated
his constitutional rights.
On November 28, 1995, the Department of Corrections filed
an answer admitting that Wolfinbarger had been hospitalized and had
received a skin graft, but denying the majority of the allegations
or that his constitutional rights had been infringed.
In its
answer, the Corrections Department stated that Dr. Rishi had
retired from employment with Corrections and that Nurse Mary
Resiner no longer worked at the Kentucky State Reformatory.
In a
subsequent motion, the Department of Corrections sought to withdraw
waiver of service for Nurse Resiner because she was not an employee
of the Department of Corrections.
In April 1996, a private attorney filed an entry of
appearance
notifying
the
circuit
-2-
court
that
he
would
be
representing
Wolfinbarger.
Wolfinbarger’s
In
December
1996,
however,
attorney filed a motion to withdraw from the case,
which the trial court granted by order dated December 16, 1996.
On
January 7, 1997, Wolfinbarger filed a pro se motion to hold the
civil action in abeyance given his attorney’s withdrawal from the
case.
The Department of Corrections filed a response stating it
had no objection to the motion to hold the action in abeyance.
On
January 10, 1997, the court granted the motion and ordered the case
held in abeyance.
On March 4, 1998, the circuit court issued a notice to
dismiss for lack of prosecution ordering the parties to show cause
why the action should not be dismissed.
On March 24, 1998,
Wolfinbarger filed a response to the show cause order stating that
he was having difficulty obtaining legal representation by a
private attorney and requesting the appointment of a prison legal
aide to represent him.
On April 20, 1998, Wolfinbarger filed a
motion to amend the complaint, and attached a new pleading entitled
“Civil Rights Complaint with Jury Demand,” and an affidavit.
On
April 23, 1998, Lawrence Froman, a prison inmate legal aide, filed
a formal entry of appearance seeking a court order designating him
as Wolfinbarger’s “legal counsel.” On May 8, 1998, the trial court
denied Wolfinbarger’s motion to file an amended complaint for
failure
to
serve
all
the
parties,
and
denied
appointment
or
recognition of the inmate legal aide as counsel because he was not
a licensed attorney.
On May 15, 1998, Wolfinbarger refiled his “Civil Rights
Complaint”
with
an
amended
certificate
-3-
of
service
indicating
service to all the defendants by mailing it to the Kentucky State
Reformatory.
At the same time, he filed a motion for discovery
requesting the production of numerous prison documents. On June 3,
1998, the Department of Corrections filed a motion to dismiss for
lack of prosecution pursuant to
CR 41.02(1).
trial court granted the motion to dismiss.
On June 9, 1998, the
This appeal followed.
Wolfinbarger challenges the trial court’s dismissal of
his complaint.
lack
of
Although the trial court’s notice of dismissal for
prosecution
apparently
was
initiated
77.02(2), the Corrections Department’s
pursuant
to
CR
motion to dismiss for lack
of prosecution was filed pursuant to CR 41.02(1).
Given the trial
court’s order granting appellee’s motion to dismiss, we will
analyze the present appeal in light of the case law construing CR
41.02(1).
See
Polk
v.
Wimsatt,
Ky.
App.,
689
S.W.2d
363
(1985)(discussing CR 41.02 and the former version of CR 77.02).
The trial court’s order did not indicate explicitly whether the
dismissal was “with prejudice” or “without prejudice.” However, CR
41.02(3) states that an order entered pursuant to CR 41.02 that
fails to otherwise specify “operates as an adjudication upon the
merits.”1
Therefore, the trial court’s order granting the motion
to dismiss will be treated as a dismissal with prejudice.
See,
e.g., Commonwealth v. Taber, Ky., 941 S.W.2d 463 (1997).
Generally, dismissal of an action upon a motion of the
defendant pursuant to CR 41.02 is within the sound discretion of
1
In contrast, CR 77.02(2) states that a trial court “shall
enter an order dismissing without prejudice . . . .” CR 41.02(3)
excludes a dismissal for lack of prosecution under CR 77.02(2) as
a dismissal on the merits.
-4-
the trial court.
Thompson v. Kentucky Power Co., Ky. App., 551
S.W.2d 815 (1977); Modern Heating & Supply Co., Ky., 451 S.W.2d 401
(1970).
However, dismissal pursuant to CR 41.02 for failure to
prosecute is an extreme remedy, and an appellate court “should
carefully
scrutinize
. . . .
the
exercise
of
discretion
in doing
so
Less drastic remedies, including dismissal without
prejudice, would normally suffice to punish a dilatory, but not
recalcitrant, party where the rights of other parties have not been
prejudiced by the delay.”
Polk, 689 S.W.2d at 365.
“Each case
must be considered in the light of the particular circumstances
involved and length of time is not alone the test of diligence.”
Gill v. Gill, Ky., 455 S.W.2d 545, 546 (1970).
considering
whether
prosecution include:
a
case
should
be
Factors relevant in
dismissed
for
lack
of
“1) the extent of the party’s personal
responsibility; 2) the history of dilatoriness; 3) whether the
attorney’s conduct was willful and in bad faith; 4) meritoriousness
of the claim; 5) prejudice to the other party; [and] 6) alternative
sanctions.”
Ward v. Housman, Ky. App., 809 S.W.2d 717, 719
(1991)(citing Scarborough v. Eubanks, 747 F.2d 871 (3rd Cir. 1984).
We
believe
the
trial
court
acted
prematurely
dismissing the case for lack of prosecution under CR 41.02.
in
While
Wolfinbarger’s action has been pending for over four years, the
record does not indicate that he has acted in bad faith or wilfully
in not pursuing his complaint more diligently.
In January 1997,
Wolfinbarger filed a motion to hold the case in abeyance because
his private attorney withdrew from the case.
The Department of
Corrections did not object, and the trial court granted the motion
-5-
to
hold
the
limitation.
case
in
abeyance
without
specifying
any
time
When the trial court issued its notice to dismiss for
lack of prosecution in March 1998, Wolfinbarger filed a response
twenty days later asking the court not to dismiss the action
because he had had difficulty finding a new attorney.
A short time
later, he also filed a motion to supplement the pleadings with an
amended complaint.
In May 1998, Wolfinbarger filed a motion for
discovery
production
seeking
Department of Corrections.
of
several
documents
from
the
The record also contains copies of
letters to Wolfinbarger from several different attorneys declining
to provide legal representation for him. The record indicates that
in addition to his severe physical limitations,
Wolfinbarger has
a very limited education and relies heavily on the prison inmate
legal aids.
The Department of Corrections contends that it has been
prejudiced by the delay in prosecuting this action, but it has
failed to provide specific information to support this contention.
It alleges that three of the five individuals named in the original
complaint no longer are employed by the Corrections Department, but
it does not claim that they are unavailable.
It also asserts that
attempting to comply with Wolfinbarger’s discovery requests would
be “at best manifestly burdensome and at worse, impossible,” again
without providing any specifics.
In conclusion, we do not believe that the record in this
case supports the drastic remedy of involuntary dismissal of
Wolfinbarger’s action with prejudice under CR 41.02.
Without
expressing an opinion on the validity of the complaint, we cannot
-6-
say that Wolfinbarger’s action is totally without merit.
The
Department of Corrections consented to a portion of the delay by
not opposing the motion to hold the case in abeyance, and it has
failed to present a convincing argument of prejudice caused by the
delay.
Furthermore, it does not appear that the trial court
considered
alternative,
less
drastic
sanctions
to
dismissal.
Therefore, we hold that the trial court abused its discretion in
dismissing the action for failure to prosecute.
For the foregoing reasons, we reverse the order of the
Oldham
Circuit
Court,
and
remand
for
reinstatement
of
complaint.
KNOPF, Judge, concurs.
GUDGEL, Judge, dissents without separate opinion.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jackie Wolfinbarger, pro se
LaGrange, Kentucky
Rebecca Baylous
Department of Corrections
Frankfort, Kentucky
-7-
the
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