Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 73 C 2447 - Bernard M. Decker, Judge.
Before Cummings, Pell and Tone, Circuit Judges.
The root of the claims involved in the present consolidated appeals by Jafree*fn1 is before this court for the second time. In our order of June 25, 1975, with one narrow exception, we affirmed the judgment of the district court dismissing by way of summary judgment Jafree's cause of action.*fn2 While Jafree is continuing to contend that he remains to this day an assistant Attorney General of Illinois, our prior decision clearly puts to rest any such claim as we affirmed the district court's judgment that he had no property interest in his employment and that he was subject to the summary dismissal which occurred.
In our decision of 1975 we did note that it was not clear, however, that some liberty interest of Jafree may not have been violated by claimed stigmatizing communications following the discharge, particularly one from Scott to the American Civil Liberties Union. We therefore stated in our holding,
Reluctantly, because of doubt from the entire record as to Jafree's ultimate ability to sustain the liberty position he asserts, we conclude, notwithstanding the borderline aspects of the particular issue, that there was sufficient matter presented outside the pleading as to require at the least further exploration via summary judgment procedure and if that does not eliminate the issue of fact, then a trial on the liberty interest issue.
In view of some narrowing of concepts in the matter of the liberty interest issue since our prior decision, See Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976), and Schwartz v. Thompson, 497 F.2d 430 (2d Cir. 1974), we might well have second thoughts as to the correctness of the prior disposition. That issue, however, is not directly before us so we will address only the issue which is properly before us.
In determining what that issue is, we look first at the notice of appeal filed June 9, 1976. That notice purports to launch an appeal not only as to the May 7, 1976 (formally entered May 10, 1976) order denying Jafree's first 60(b) motion but also as to the judgment of dismissal dated March 30, 1976.*fn3 As far as the judgment of March 30 was concerned the 30 days for filing notice of appeal was long past, there was no extension of time requested, and even if there had been an additional 30 days as allowed by Rule 4, F.R.A.P., it also would have expired prior to June 9, 1976. The 60(b) motion was filed within the 30 day period after the judgment of dismissal but "Rule 60(b) was not intended to be an alternative method to obtain review by appeal or as a means of enlarging by indirection the time for appeal." Swam v. United States, 327 F.2d 431, 433 (7th Cir.) Cert. denied, 379 U.S. 852, 85 S. Ct. 98, 13 L. Ed. 2d 55 (1964). The reference in the notice to the judgment, therefore, is without effect because of the lack of timeliness. The failure to appeal the judgment of dismissal is of some significance because of the contention raised on appeal for the first time, at least as far as either 60(b) motion is concerned, that in some way Jafree was excused from prosecuting his action because the defendants had not answered certain interrogatories. This was a matter plainly visible in the record before the district court, unlike Jafree's absence from the country raised on the first 60(b) motion and the alleged fraud of defendants and their collusion with the union attorney formerly representing Jafree raised in the second 60(b) motion. The record reflected that the interrogatories had not been answered and we regard the failure of Jafree to raise this by direct appeal as a waiver.*fn4
Even if there were no waiver we would not view the dismissal for want of prosecution as an abuse of discretion. The defendant's answers to the interrogatories were overdue when the court struck plaintiff's affidavit and ordered another one filed within ten days and when the court later extended that time for two weeks. It must be assumed that the court determined that plaintiff should be required to file a new affidavit regardless of whether the interrogatories had been answered, which it plainly had power to do. Plaintiff's failure to comply with the court's order was an adequate basis for dismissal.
It should also be remembered that the basic duty of prosecuting the action remains on the plaintiff who has brought it, not the court before which it pends nor the defendant who generally, in any event, is an unwilling participant in the proceedings. It is quite sufficient to justify dismissal if the plaintiff does nothing, as he knows that until something is done there will be no trial. See Forest Nursery Company v. Crete Carrier Corporation, 319 F. Supp. 213, 215 (E.D.Tenn.1970).
There remains then for decision the matter of the propriety of the district court's denial of relief on the two 60(b) motions. This is all that is before the court despite the mass of wide-ranging, often conclusory, material from Jafree by means of briefs, motions, and correspondence which can only be regarded as a counter-stigmatization program with a self-encomiastic background.*fn5
In considering the two motions we first note that "(it) is well settled that neither a dismissal with prejudice for failure to prosecute nor a refusal to vacate such a judgment will be reversed on appeal except for abuse of discretion." Redac Project 6426, Inc. v. Allstate Ins. Co., 412 F.2d 1043, 1046 (2d Cir. 1969). Moreover, in reviewing the denial of a 60(b) motion, the appellate court's function generally "is not to determine whether the court was substantively correct in entering the judgment from which relief is sought but is limited to deciding whether the judge abused his discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not shown in a timely manner." Brennan v. Midwestern United Life Insurance Company, 450 F.2d 999, 1003 (7th Cir. 1971), Cert. denied, 405 U.S. 921, 92 S. Ct. 957, 30 L. Ed. 2d 792 (1972).*fn6
The sum of Jafree's 60(b) motions is that he relies on subdivisions (1), (4), and (6) of that rule. On the facts of the present case we are not persuaded that the district court abused its discretion in denying the motions. The motion under subdivision (1) on the ground of excusable neglect did not show grounds for vacating the order of dismissal, which as we have said was not an abuse of discretion when entered. Judge Decker, following the implicit direction of this court in its prior order for "further exploration via summary judgment procedure," had ordered Jafree to file an affidavit with regard to alleged stigmatory statements directed at him. Jafree had been granted several extensions of time and had failed to file an adequate affidavit. As the judge noted, the fact that Jafree was in England does not excuse his neglect inasmuch as his attorney was here in Chicago and could have sought another extension if communication with the client was difficult.
As already indicated herein, there is no basis for claiming a void judgment under subdivision (4). As to subdivision (6), the conclusory generalized statements regarding corruption, or collusion, or fraud by his former attorney in failing to file the necessary affidavit is insufficient in our opinion for us to say that the court abused its discretion.
Finding that there was no abuse of discretion, the orders of the district court in denying the Rule 60(b) motions and the judgment at which the motions were directed are affirmed.
General conclusory claims of violations of constitutional rights
"So much blood of Assistant Attorney General Syed M.J. Iqbal Jafree (Appellant) has been washed underneath the bridges and down the sewage of jurisprudence in the State of Illinois during the Era of Nixxonites (sic) that no amount of recounting would do sufficient justice."
"(E)ach page of this avant-garde brief incorporates by reference as part and parcel of this brief all that has been said before, and does not exclude the cries of three little children (Jafree's) whose American dreams have been systemically (sic) ...