Opinion
No. 80-1635.
Submitted August 25, 1980.
Decided September 2, 1980.
Clovis Carl Green, Jr., pro se, for appellants.
Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
Appeal from the United States District Court for the Eastern District of Missouri.
Before BRIGHT, HENLEY and ARNOLD, Circuit Judges.
On July 21, 1980, we entered an order directing appellee to show cause why this case should not be summarily reversed and remanded for a hearing previously directed by this Court. Appellee's response has now been filed and considered.
On July 13, 1979, this Court held that some of the claims presented by Green in this action were not frivolous. The case was remanded to the District Court for an evidentiary hearing. Green v. White, 605 F.2d 376 (8th Cir. 1979). After the Supreme Court had denied petitions for certiorari filed by both parties, 441 U.S. 925, 99 S.Ct. 2038, 60 L.Ed.2d 400 (1980), the mandate of this Court was transmitted to the District Court.
Thereafter, instead of holding the evidentiary hearing that had been directed, the District Court found that the complaint was malicious and dismissed it. A motion for evidentiary hearing was denied.
We are aware of appellant's history of multiplicious litigation. As a matter of fact, our previous opinion, 605 F.2d at 378 n. 2, referred to this history. The fact remains that this Court's mandate, issued as a consequence of its prior opinion, requires that an evidentiary hearing be held on the issues previously found not to be frivolous.
We note that appellant's latest filing represents that he "will not call any witnesses except himself," and that his "testimony should last 2-4 hours." The District Court should hold appellant to these representations.
The judgment is reversed, and the cause remanded with directions to hold an evidentiary hearing in accordance with this Court's opinion of July 13, 1979.