ROGER WHITAKER V. RICHARD FREY (JAILER)
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RENDERED:
December 31, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-0099-MR
ROGER WHITAKER
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE KEN G. COREY, JUDGE
ACTION NO. 93-CI-4820
V.
RICHARD FREY (JAILER)
APPELLEE
OPINION AFFIRMING
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BEFORE:
*
*
*
*
DYCHE, EMBERTON, and GUIDUGLI, Judges.
DYCHE, JUDGE.
civil
*
action
prosecute.
Roger Whitaker appeals from the dismissal of his
by
the
Jefferson
Circuit
Court
for
failure
to
We affirm.
Whitaker, an inmate, filed a civil action on September
29, 1993, seeking damages for negligence in transporting him and
for
deliberate
indifference
regarding
medical
treatment.
On
November 25, 1996, appellee filed a motion to dismiss for failure
to prosecute.
The last action taken in the case by Whitaker was
service of his motion for appointment of a guardian ad litem.
motion was denied on April 29, 1994.
This
On December 16, 1996,
Whitaker filed a motion for summary judgment.
On December 18,
1996, the trial court dismissed Whitaker's action for failure to
prosecute.
First, Whitaker argues that the trial court committed
error in failing to appoint a guardian ad litem pursuant to CR
17.04.
He contends that a guardian ad litem must be appointed to
defend a motion to dismiss, even if the action was instituted by a
prisoner.
We disagree.
If a prisoner fails to defend a civil
action brought against him, a guardian ad
litem must be appointed for him before
judgment may be entered.
CR 17.04;
Davidson v. Boggs, Ky. App., 859 S.W.2d
662 (1993).
However, CR 17.04 has no
application where, as here, the action is
brought by, rather than against, the
prisoner.
May v. Coleman, Ky., 945 S.W.2d 426, 427 (1997).
Whitaker filed
the civil action and has no right to appointment of a guardian ad
litem.
Whitaker next argues that the trial court erred in
dismissing the case sua sponte, and that the order was entered
without giving appellant time to respond.
We disagree.
The trial court entered an order granting appellee's
motion for dismissal for failure to prosecute on December 18, 1996,
twenty-three days after the motion was filed on November 25, 1996.
The order was not sua sponte and Whitaker had ample opportunity to
respond.
The order of the Jefferson Circuit Court dismissing
appellant's civil action for failure to prosecute is affirmed.
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ALL CONCUR.
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BRIEF FOR APPELLANT, PRO SE
BRIEF FOR APPELLEE
Roger Wayne Whitaker
Lexington, Kentucky
Jeffrey L. Freeman
Assistant Jefferson County
Attorney
Louisville, Kentucky
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