James E. Delbridge v. Steve Norris, Herman C. Davis, Warden, and Thomas Noojin

842 F.2d 331, 1988 U.S. App. LEXIS 3429, 1988 WL 23697

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 18, 1988
• Docket: 87-5859
• Status: Unpublished

Opinion

842 F.2d 331

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
James E. DELBRIDGE, Plaintiff-Appellant,
v.
Steve NORRIS, Herman C. Davis, Warden, and Thomas Noojin,
Defendants-Appellees.

No. 87-5859.

United States Court of Appeals, Sixth Circuit.

March 18, 1988.

Before ENGEL, MERRITT and KRUPANSKY, Circuit Judges.

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Plaintiff-appellant Delbridge, along with Joseph Pollard, filed this civil rights action (42 U.S.C. Sec. 1983) alleging defendant Noojin assaulted them during their incarceration at the Fort Pillow State Farm, Henning, Tennessee. The district court granted the motion to dismiss filed by defendants Norris and Davis in an order filed November 26, 1986. The court subsequently dismissed the remaining claims against defendant Noojin under Fed.R.Civ.P. 41(b) for want of prosecution. This appeal followed the denial of a timely motion under Fed.R.Civ.P. 59. On appeal plaintiff-appellant Delbridge has submitted a pro se brief. Defendants have declined to participate in this appeal.

Upon consideration, we affirm the dismissal of the case against defendants Norris and Davis. We conclude the district court was correct in finding no claim for relief had been stated as to these two defendants. We must, however, vacate the dismissal of the claims against defendant Noojin. The district court decided the complaint should be dismissed for failure to prosecute because plaintiffs failed to respond to the show cause order of May 28, 1987. The docket sheet and the actual pleadings, however, reflect plaintiffs filed several pleadings on June 12, 1987, including a motion for default judgment and a motion for the appointment of counsel.

It is therefore ordered the dismissal of the claims against defendants Norris and Davis be affirmed for the reason set forth in the order November 28, 1986. Rule 9(b)(5), Rules of the Sixth Circuit. It is also ordered the dismissal of the claims against defendant Noojin be vacated and remanded for further proceedings. Rule 9(b)(6), Rules of the Sixth Circuit.