Sires v. Fair ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 96-1454



                                WILLIAM S. SIRES, JR.,



                                Plaintiff, Appellant,



                                          v.



                               MICHAEL V. FAIR, ET AL.,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                       [Hon. Mark L. Wolf, U.S. District Judge]
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                                        Before



                               Selya, Boudin and Lynch,

                                   Circuit Judges.
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            William S. Sires, Jr. on brief pro se.
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            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and
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        Charles   M.  Wyzanski,   Senior  Litigation   Counsel,  Massachusetts
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        Department  of  Correction,  on  Motion For  Summary  Disposition  and

        Memorandum Of Law for appellees.





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                                  February 10, 1997

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                 Per Curiam.  Appellant  William Sires, an inmate  in the
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            Massachusetts  prison system, appeals  a district court order



            denying  his  motion  to   hold  appellees  in  contempt  for



            violation of  a previous court order requiring  that they use



            their best efforts  to ensure that he  receive proper medical



            care while  in prison.   Sires further  alleges the  district



            court erred in  refusing to grant  his request for  discovery



            and  the subpoena of witnesses.   Sires also  appeals a court



            order relieving  his court appointed  counsel of the  duty of



            further representing him and refusing to appoint new counsel.



            Finally,  Sires  claims  that  the district  court  erred  in



            ordering  him not  to  "file any  additional motions  without



            prior authorization  of this court."  We  affirm the district



            court on all claims, except that of the injunction.



                 The district  court in the  instant case held  a lengthy



            hearing at which it heard testimony concerning the quality of



            Sires'  health  care.    It  then  made  a  factual  finding,



            supportable in the record, that, while that care had not been



            "optimal,"  appellees had  nevertheless  made  a  good  faith



            effort to comply with  the previous order.  We  have reviewed



            the record carefully and  find no abuse of discretion  in the



            court's denial of Sires' contempt motion.



                 Moreover,  the record indicates  that Sires  suffered no



            prejudice  from the  district  court's failure  to grant  his











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            request for the  production of documents  and the issuing  of



            subpoenas to witnesses.



                 Appointment of counsel in a civil proceeding is required



            only  in "exceptional  circumstances."  DesRosiers  v. Moran,
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            949 F.2d 15, 23 (1st Cir.  1991).  The record indicates  that



            the  issues at the contempt hearing were not complex and that



            Sires was  well able  to represent  himself.  Therefore,  the



            court did not abuse its discretion in  relieving Sires' court



            appointed counsel  of the duty of  further representation and



            refusing to appoint new counsel.



                 In respect to the injunction, federal courts do "possess



            discretionary  powers to  regulate  the  conduct  of  abusive



            litigants."   Cok v. Family  Court of Rhode  Island, 985 F.2d
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            32,   34  (1st   Cir.  1993).     Accordingly,   "in  extreme



            circumstances  involving  groundless  encroachment  upon  the



            limited time and resources of the court and other parties, an



            injunction  barring  a  party  from  filing  and   processing



            frivolous  and  vexatious   [motions]  may  be  appropriate."



            Castro v. United States,  775 F.2d 399, 408 (1st  Cir. 1984).
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            Nevertheless,  any bar must be "narrowly tailored."  Sires v.
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            Gabriel,  748   F.2d  49,  51   (1st  Cir.  1984),   lest  it
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            "impermissibly infringe upon a litigator's right of access to



            the courts,"   Castro, 775  F.2d at 410.   Such an injunction
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            must "remain very much  the exception to the general  rule of



            free access to the  courts" and must be used  with particular







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            caution against a pro  se plaintiff.  Pavilonis v.  King, 626
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            F.2d 1075, 1079 (1st Cir. 1980).  This court reviews entry of



            such injunctions for abuse of discretion.  Id. at 408.
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                 The injunction in this case is more problematic.   Sires



            was  not  "warned  or  otherwise  given  notice  that  filing



            restrictions were contemplated," Cok, 985 F.2d at 35;  he had
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            not been afforded "an opportunity to respond" before entry of



            the  injunction, see id.; and  there was no  request from the
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            defendants for such an order, see Pavilonis, 626 F.2d at 1079
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            ("Generally,  this kind  of  order should  not be  considered



            absent a request by the harassed defendants.").  While no one



            of   these  factors,   standing   alone,  would   necessarily



            invalidate the injunction, they are fatal here because it  is



            unclear that the  record supports the injunction.   Denial of



            routine access  to the courts  is an  "extreme" measure,  and



            "[l]itigiousness   alone   will   not   support   [such]   an



            injunction."   Id.  Here, however, the district court made no
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            findings that Sires'  filings had been  frivolous, vexatious,



            or otherwise of a type and kind that would justify injunctive



            relief.   Therefore, the fairest course here is to vacate the



            injunction and remand the  case for such further proceedings,



            if any, as the district court desires to undertake.



                 Affirmed in part, vacated in part, and remanded.
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