Dorowitch v. Grzegorek

83 F.R.D. 413, 28 Fed. R. Serv. 2d 579, 1979 U.S. Dist. LEXIS 10451

• Court: District Court, E.D. Virginia
• Decided: August 13, 1979
• Docket: Civ. A. No. 79-0167-R
• Status: Published

Opinion

MEMORANDUM

WARRINER, District Judge.

Alec Dorowitch, proceeding pro se, brings this action in forma pauperis to redress an alleged violation of his constitutional rights against certain wardens of the Federal Correctional Institution, Petersburg, Virginia. Jurisdiction of this Court is granted under 28 U.S.C. § 1331.

Plaintiff claims defendants are responsible for inadequate supervision of the prison and that as a result plaintiff was seriously injured by his fellow inmates. Defendants have filed a motion to dismiss. An affidavit in support of this motion reveals that two months after this suit was filed plaintiff escaped from federal custody.

In Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970) the Supreme Court declined to adjudicate a defendant’s appeal of a state court conviction holding defendant’s escape from custody “disentitles [him] to call upon the resources of the Court for determination of his claims.” Id. at 366, 90 S.Ct. at 499.

The same rationale has been applied where a prisoner has escaped from custody after filing a § 1983 suit against State prison officials. Shaw v. Estelle, 542 F.2d 954 (5th Cir. 1976). Additionally, the Fourth Circuit has applied this rule where a serviceman has deserted his post while his petition for discharge as a conscientious objector is pending. Hichcock v. Laird, 456 F.2d 1064 (4th Cir. 1972).

In light of these decisions this Court finds that where a prisoner filing an action against federal prison officials alleging violations of his rights under the Constitution has escaped from custody, the Court may dismiss the action.