Ghana v. Story

UNITED STATES COURT OF APPEALS
Filed 10/4/96
TENTH CIRCUIT

EMORY M. GHANA,

Plaintiff-Appellant,

v. No. 96-3060
(D.C. No. 93-3343-RDR)
WILLIAM R. STORY, Warden; (D. Kan.)
DONALD A. McKELVY, Associate
Warden of Programs; LOUISE WYNN,
Unit Manager; WILLIE SCOTT;
WALDO MARTINEZ,

Defendants-Appellees.

ORDER AND JUDGMENT*

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is ordered

submitted without oral argument.

Plaintiff Emory N. Ghana, a pro se federal inmate, appeals the district court's order

granting summary judgment in favor of defendants. We dismiss the appeal as frivolous.

Ghana filed his complaint in August 1993, alleging defendants William R. Story,

*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Donald A. McKelvy, and Louise Wynn had violated his constitutional rights by refusing

to provide him with free postage stamps on one occasion. He filed an amended complaint

in November 1993, adding Willie Scott and Waldo Martinez as defendants and asserting

several additional claims of alleged constitutional violations. Defendants moved to

dismiss or, in the alternative, for summary judgment on June 13, 1994. On that same

date, defendants' counsel mailed a copy of the motion to Ghana by regular mail, postage

prepaid. The copy of the motion was not returned to defendants' counsel by the postal

service.

After receiving no response from Ghana, on September 1, 1994, defendants filed a

motion to have their dispositive motion decided as an uncontested motion pursuant to

Dist. Kan. R. 206(g). A copy of the motion was sent to Ghana that same day by regular

mail, postage prepaid, and it was not returned by the postal service. On June 14, 1995,

the district court stated it had received correspondence from Ghana alleging he had not

received a copy of defendants' dispositive motion. The court denied defendants' 206(g)

motion, directed the clerk to mail a copy of the dispositive motion to Ghana, and ordered

Ghana to file a response to the dispositive motion within twenty days of the date of

service.

The clerk complied with the court's direction but, on July 13, 1995, the copy of the

motion was returned as undelivered. On July 14, 1995, the clerk remailed the motion to

Ghana at a new address provided by the Bureau of Prisons. On September 25, 1995,

Ghana sent a letter to the clerk's office confirming he had been transferred and requesting

information on the status of his case and that all correspondence be forwarded to his new

address. The district court granted defendants' dispositive motion on January 24, 1996.

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The court deemed the statement of facts set forth in the motion admitted because of

Ghana's failure to respond.

On appeal, Ghana alleges he was not "served" with a copy of the dispositive

motion and did not have the opportunity to respond. He asks that we reverse the district

court and remand so that he can file a response to the motion. Defendants initially

deferred their filing of a brief in this appeal. A responsive brief was ordered by this court

and was filed on August 8, 1996.

After careful review, we conclude the district court did not err in granting

summary judgment in favor of defendants. Although Ghana alleged he did not receive a

copy of defendants' dispositive motion, the record on appeal suggests otherwise. It is

uncontroverted that copies of the motion were mailed to him on two separate occasions

and they were not returned by the postal service. Ghana has come forward with no

information, other than his own conclusory allegations, to indicate the copies of the

motion did not reach him. We find it curious that Ghana received all other pleadings and

correspondence from defendants and the clerk.

Even assuming Ghana did not receive the copies of the motion, we conclude that,

as plaintiff in this action, he must nevertheless bear the responsibility for failing to file a

response to the motion. Based on his correspondence to the district court, it is

uncontroverted that he was aware defendants had filed a dispositive motion. Further,

based on the court's June 14, 1995, order, it is uncontroverted that Ghana knew he would

be receiving a copy of the motion from the clerk's office and was responsible for filing a

response. Notwithstanding awareness of these facts, Ghana did not contact the clerk's

office or the court to inform them he had not received a copy of the motion. Instead, he

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sat idly by until such time as the court issued its order granting the motion. In light of his

failure to act, we find no error on the part of the district court in deciding to dispose of the

motion.

In rejecting Ghana's allegations, who is also known as Emory Muhammad Ghana

and as Al Wali D. Muhammad, we are mindful that he is no stranger to the federal courts

and has previously attempted to use similar arguments to evade his responsibilities as a

plaintiff. See Ghana v. Crockett, 45 F.3d 432, 1994 WL 718536 (7th Cir. 1994) (table)

(Ghana claimed he did not receive adequate notice of defendants' motion for summary

judgment; alleged inadequate medical treatment); Ghana v. Quinlan, 985 F.2d 572, 1993

WL 20482 (9th Cir. 1993) (table) (Ghana claimed he did not receive copy of district

court's minute order requiring him to amend complaint; action brought for failure to

prosecute). Other cases include Ghana v. Roberts, 19 F.3d 1440, 1994 WL 85317 (9th

Cir. 1994) (table) (appealed dismissal of action for failure to effect proper service);

Ghana v. Fauver, 919 F.2d 730 (3d Cir. 1990) (table); Muhammad v. Beyer, 898 F.2d 141

(3d Cir. 1990) (table); In re Ghana, 887 F.2d 261 (3d Cir. 1989) (table); Ghana v. Fauver,

877 F.2d 54 (3d Cir. 1989) (table); Muhammad v. Fauver, 877 F.2d 56 (3d Cir. 1990)

(table); Ghana v. Fauver, 841 F.2d 1118 (3d Cir. 1988) (table); Ghana v. Omari, 841 F.2d

1118 (3d Cir. 1988 (table); Ghana v. United States, 1996 WL 134821 (D. Kan. 1996)

(table) (summary judgment entered for defendants; general prison correspondence policy

violated constitutional rights); Muhammad v. Fauver, 1989 WL 71811 (D. N.J. 1989)

(table) (summary judgment entered for defendants; alleged improper and inadequate

prison sanitation, clothing, medical care, food service, library materials, education and

counseling, racially discriminatory classification system, and insufficient allowance for

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visitors; in footnote, district court stated case was a consolidation of 39 civil actions and

that 20 additional cases had been filed in federal district court since the hearing in present

case).

Both the former subsection (d) and the newly-enacted subsection (e)(2)(B)(i) of 28

U.S.C. § 1915 permit us to dismiss a frivolous appeal. An appeal is frivolous if it relies

"on an indisputably meritless legal theory" or contains "clearly baseless" factual

allegations. See Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). We have

reviewed the appellate briefs and the entire record on appeal and conclude Ghana's appeal

is frivolous.

APPEAL DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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