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GRIFFIN v. CITY OF NEW YORK CORRECTIONAL COMMR.

April 11, 1995

RAYMOND GRIFFIN a/k/a BERNARD BAYNES, JR., Plaintiff, against CITY OF NEW YORK CORRECTIONAL COMMISSIONER, et al., Defendants.


The opinion of the court was delivered by: FREDERIC BLOCK

 BLOCK, District Judge:

 On March 28, 1990, plaintiff Raymond Griffin ("Griffin") brought this action pursuant to 42 U.S.C. ยง 1983 against prison and hospital officials due to their alleged failure to provide prompt and adequate medical treatment for his alleged health problems, which Griffin claims constitutes "cruel and unusual punishment." For the reasons more fully set forth below, Griffin's complaint is dismissed because he is a fugitive from justice.

 I.

 BACKGROUND

 On April 6, 1992, this Court (Nickerson, J.) granted Griffin's application for appointment of pro bono counsel. Copies of this order were forwarded to Griffin at his last known address but were returned with the notation: "Inmate says contents do not belong to him."

 Upon transfer of this case to the undersigned on November 29, 1994, the Court undertook an extensive search to locate Griffin. The fruits of that search brought disturbing news: Griffin is a fugitive from justice. According to the Senior Parole Officer from the Absconder Search Unit of the State of New York, "Mr. Griffin was released from Altona Correctional Facility on [November 2, 1992] to Parole supervision . . . [but] stopped reporting to his Parole Officer on [August 17, 1994]." Letter from H. Gene Washington, Senior Parole Officer, Absconder Search Unit, State of New York (Feb. 7, 1995). On September 28, 1994, an absconder warrant was issued for Griffin's arrest. Id.

 II.

 DISCUSSION

 In Bar-Levy v. United States Dept. of Justice, Immigration and Nat. Serv., 990 F.2d 33, 35 (2d Cir. 1993), the Second Circuit stated that "it is well established that courts have the authority to dismiss criminal appeals when their jurisdiction is invoked by a fugitive from justice." The court identified four rationales underlying such a policy:

 
First, a decision respecting a fugitive is effectively unenforceable because the fugitive is beyond the control of the court. Second, loss of appellate review is appropriate because the fugitive flouts the judicial process by escaping. . . . Third, a rule of dismissal has the salutary effects of discouraging escape and promoting the efficient operation of the appellate courts. . . . Fourth, the delay occasioned by the period of a defendant's flight can prejudice the prosecution should a new trial be ordered after a successful appeal.

 Id. (quoting United States v. Persico, 853 F.2d 134, 137 (2d Cir. 1988)).

 The Bar-Levy court made clear that the fugitive from justice rule applies to civil cases: "We have extended the fugitive from justice rule to civil cases in which the appellant is a fugitive in a criminal matter." Id. (citing United States v. $ 45,940 in U.S. Currency, 739 F.2d 792, 796-98 (2d Cir. 1984)). Other courts also have invoked the rule in civil actions. See Conforte v. Commissioner of Internal Revenue, 459 U.S. 1309, 1312, 103 S. Ct. 663, 74 L. Ed. 2d 588 (1983) ("While this Court has never extended the 'fugitive from justice' rule beyond . . . facts . . . where the criminal conviction the litigant is a fugitive from is the judgment being challenged on appeal[], the court below correctly points out that the Courts of Appeals have done so on a number of occasions").

 The principles underlying the fugitive from justice rule have been applied to dismiss section 1983 actions. In Ali v. Sims, 788 F.2d 954, 958-59 (3d Cir. 1986), for example, the Third Circuit vacated a section 1983 judgment in favor of the plaintiff and, it stated, would have normally remanded the action for a new trial but for the fact that ...


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