Desmond v. MBTA ( 1998 )

USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 98-1411



                        JOSEPH F. DESMOND,



                      Plaintiff, Appellant,



                                v.



       MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, ET AL.,



                      Defendants, Appellees.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. Robert E. Keeton, U.S. District Judge]







                              Before



                      Selya, Circuit Judge,

                Campbell, Senior Circuit Judge,

                   and Lynch, Circuit Judge.







     John F. Desmond on brief pro se.

     Jonathan P. Feltner, First Assistant General Counsel-Trials,

and Edward P. Harrington, Assistant General Counsel, MBTA Law

Department, on brief for appellees Massachusetts Bay Transportation

Authority, Patrick J. Moynihan, General Manager, James Clark,

Robert Powers, Bob Norton, Kevin Shorter and J. Floyd.









OCTOBER 23, 1998







            Per Curiam.  The complaint was dismissed as a

    sanction for (1) plaintiff's failure to attend his deposition

    twice, despite proper notice and a court order warning of

    sanctions in the event of a second failure, and (2) plaintiff's

    failure to appear or attend a pretrial conference by telephone,

    despite the grant of his request to attend the conference by

    telephone.

              Having carefully reviewed the judgment below in light

    of the entire record and the parties' arguments on appeal, we

    find no abuse of discretion in the dismissal.  Since the

    complaint was properly dismissed for abuses constituting a

    failure to prosecute, plaintiff's challenges to the district

    court's interlocutory orders are not properly before us.

    John's Insulation, Inc. v. L. Addison & Assocs., Inc., --- F.3d

    ---, 1998 WL 568602 *5-*8  (1st Cir. Sept. 11, 1998).  In any

    event, there was no prejudicial error in the court's careful

    interlocutory rulings on each of plaintiff's largely

    incomprehensible motions.

             Plaintiff's appellate motions, (1) "To Quash All

  Warrants, Release Copies Thereof and Award Damages in the

  Amount of 5.5 Million Dollars Based on Judicial Fraud . . . ,"

  and (2) "That All Documents Being Witheld, and or Edited Be

  Released In Full . . . ," seemingly attempt to insinuate new

  facts and issues which are beyond the scope of this appeal.

            The judgment is affirmed and all motions are denied.