Elbery v. Louison ( 1999 )

USCA1 Opinion

       [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 99-1039



                         MICHAEL ELBERY,



                      Plaintiff, Appellant,



                                v.



       BRADFORD LOUISON, ROBERT BREEN, JAMES HURLEY, ROBERT

  MCGUINLEY, JAMES V. SAMPSON, CHESTER GUS JOHNSON, AND TOWN OF

                            SHREWSBURY,



                      Defendants, Appellees.

                       ____________________



No. 99-1319



                         MICHAEL ELBERY,



                      Plaintiff, Appellant,



                                v.



                          JAMES HESTER,



                       Defendant, Appellee.

                      _____________________



      MICHAEL SALLOUM, TOWN OF SHREWSBURY, ROBERT MCGUINLEY,

                  DANIEL MORGADO, WAYNE SAMPSON,



                            Appellees.







          APPEALS FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



            [Hon. Patti B. Saris, U.S. District Judge]







                              Before



                     Torruella, Chief Judge,

               Selya and Boudin, Circuit Judges.









     Michael Elbery on brief pro se.

     Elizabeth M. Fahey and Pierce, Davis, Fahey & Perritano, LLP

on brief for appellees, James Hurley, Robert McGinley, James V.

Sampson, Chester Gus Johnson and Town of Shrewsbury.

     Bradford N. Louison and Merrick, Louison & Costello on brief

for appellee James Hester.











December 17,1999











































































            Per Curiam.  In these consolidated cases, appellant

  Michael Elbery appeals from two orders entered by the district

  court in two separate, but related, actions.  These orders

  forbid appellant from filing any complaints against the Town of

  Shrewsbury Police Department and certain individuals without

  first obtaining approval from the district court.  After

  briefly setting out the facts and the law, we address each

  order separately.

                          I.  Background

            Appellant has filed various lawsuits, including the

  two below, concerning the events surrounding, and following,

  his arrests by the Shrewsbury, Massachusetts police on two

  separate occasions.  The first arrest arose out of a fight

  outside a bar in Worcester in 1992.  In connection with his

  prosecution for this fight, appellant was arrested and charged

  with intimidating a witness (the bartender who had seen the

  fight).  According to appellant, he was tried in a state

  district court and found guilty of this charge, but on appeal

  to the superior court, the charge was dismissed.

            The second arrest took place in 1994 after a fire at

  a warehouse storage facility in which appellant rented a

  storage unit.  According to appellant, he kept his collection

  of guns, for which he had a license, in this unit.  Shrewsbury

  police arrested appellant on five charges of possession of

  firearms and one charge of carrying a firearm.  Appellant

  states that the district attorney did not appear at the trial

  and that he was acquitted of the charges.

            Based on these arrests, appellant filed two actions

  listing claims for malicious prosecution and various

  constitutional violations against the Shrewsbury police and

  others.  These actions are entitled Elbery v. Hester and Elbery

  v. Sklut and are pending in the federal district court.

  Appellant also commenced an action against Linda Schlener, the

  individual who had filed the complaint with the Shrewsbury

  police concerning appellant's intimidation of the witness to

  the bar fight.  This case remains in state court and is

  entitled Elbery v. Schlener (Schlener I).

            Not content with having three pending actions,

  appellant filed three more suits in the federal district court

  concerning events that had transpired during the arrests and

  also events which had occurred in the pending cases.  In Elbery

  v. Schlener (Schlener II), appellant sued, among others, Linda

  Schlener, Schlener's lawyer in Schlener I, and the state judge

  in Schlener I.  Appellant alleged in this case that the

  defendants had retaliated against him for filing his original

  actions against Schlener and Hester.  In particular, appellant

  stated that Schlener had asserted counterclaims in the state

  case as an act of retaliation.

            In the second case, Elbery v. Louison, appellant

  filed a complaint which named as a defendant attorney Bradford

  Louison.  Louison was then representing the Town of Shrewsbury

  and its police officers.  The other defendants were Shrewsbury

  police officers.  Appellant alleged that the police had started

  the fire at the storage warehouse so that they could frame him

  on the gun charges and stop him from filing his federal

  lawsuits.

            Finally, in Elbery v. Klug, the third lawsuit,

  appellant again listed attorney Louison as a defendant.  He

  also sued various Shrewsbury police officers, the United Parcel

  Service, Day's Inn Motel, and a bartender at Day's Inn.  He

  essentially claimed that these defendants had engaged in a

  cover-up concerning what he perceived to be constitutional

  violations in the defense of the Loiuson case.

                         II.  The Law

            It is well-established that "[f]ederal courts . . .

  possess discretionary powers to regulate the conduct of abusive

  litigants."  Cok v. Family Court of Rhode Island, 985 F.2d 32,

  34 (1st Cir. 1993) (per curiam).  Thus, "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 lawsuits may be appropriate."  Castro v. United

  States, 775 F.2d 399, 408 (1st Cir. 1985) (per curiam).  Such

  an injunction, however, must be "narrowly drawn to fit the

  specific vice encountered."  Id. at 410.  The issuance of an

  injunction aimed at preventing vexatious litigation is reviewed

  for abuse of discretion.  Id. at 408.

                  III.  The District Court Orders

            A.  Appeal No. 99-1039

            This appeal arises out of the Louison case, the first

  action in which appellant sued attorney Louison concerning

  Louison's representation of the Shrewsbury defendants in the

  prior cases.  In their motion for an injunction, the defendants

  alleged that after appellant's deposition was taken by

  Elizabeth Fahey, the new attorney representing the Shrewsbury

  defendants in Sklut and Louison, appellant called Fahey and

  stated that he might sue Fahey and the court reporter present

  at the deposition based on Fahey's alleged falsification of the

  deposition transcript.  The defendants therefore requested that

  appellant be required to seek leave of court before filing a

  complaint against Fahey or the court reporter.

            When no opposition was forthcoming, the district

  court granted the motion by endorsing it as "allowed."  The

  following entry also was made on the docket sheet:  "Endorsed

  Order entered granting . . . motion to require plaintiff to

  seek leave of court before plaintiff files new complaint."

  Soon thereafter, appellant filed a belated opposition to the

  motion, alleging that Fahey intended to deprive him of his

  constitutional rights.

            We think that the injunction entered by the district

  court must be read as ordering that appellant seek approval

  prior to filing a new complaint against Fahey or the court

  reporter only, not that he must seek approval before filing any

  new complaint.  As read, it is plain that appellant received

  notice, via the defendants' motion, that the district court was

  contemplating such an injunction.  Also as read, the injunction

  is tailored to the specific circumstances facing the court and

  was not entered just to curtail appellant's ability to initiate

  litigation.

            While appellant is correct that litigiousness alone

  will not support an injunction, see Castro, supra, 775 F.2d at

  408-09, we believe that appellant's particular affinity for

  suing attorneys who represent defendants in the pending cases

  amounts to behavior which is vexatious and harassing.  In

  particular, appellant already has sued Louison and Schlener's

  attorney in the state case.  We note that when such an attorney

  is so sued, the attorney often will be required to cease

  representing his or her client, with the result that the client

  will be forced to find new counsel.  Given appellant's belief

  that Fahey and the court reporter are part of the ongoing

  conspiracy to violate his constitutional rights, an injunction

  requiring appellant to secure approval before filing a

  complaint against either of them was not an abuse of

  discretion.

            B.  Appeal No. 99-1319

            This appeal arises out of Elbery v. Hester in which

  appellant sued James Hester, the police officer who had

  arrested him on the charge of intimidating a witness.  In this

  case, Hester moved for an order requiring appellant to seek

  court approval before filing any more lawsuits against Hester,

  other members of the Shrewsbury Police Department, or Louison

  (the attorney then representing Hester).  The district court

  granted the motion, pointing out that appellant already had

  filed five pro se lawsuits against the Shrewsbury Police

  Department and that two of the cases named Louison as a

  defendant.  The court thus ordered appellant "not to file an[y]

  additional lawsuits against the Shrewsbury Police Department,

  its members, Bradford Louison, or any of the attorneys who have

  filed an appearance in these suits without obtaining advance

  court approval."  The court added that "[d]efense counsel may

  file a motion to deem any such case as 'related.'"

            Appellant initially argues that the above order does

  not set out sufficient record support for the injunction.

  Although the court did not list by name, or discuss, all of the

  actions appellant had filed, this is not fatal.  Hester's

  motion adequately reviewed the pending cases and pointed out

  how they were connected.  Further, this court may take judicial

  notice of "proceedings in other courts, both within and outside

  of the federal judicial system, if the proceedings have a

  direct relation to matters at issue."  Green v. Warden, United

  States Penitentiary, 699 F.2d 364, 369 (7th Cir. 1983).  There

  is no question that the pending lawsuits listed above are

  related to the injunctions entered by the district court.

            Turning to the merits, appellant primarily contends

  that the injunction was an abuse of discretion because the

  cases he has filed are not vexatious or harassing.  Rather, he

  states, the cases are meritorious and he is merely exercising

  his right of free access to the courts.  We disagree.

            At the time the motion for an injunction was filed,

  appellant already had initiated the two suits challenging his

  arrests for intimidating a witness and for firearms violations

  (Hester and Sklut).  Had appellant stopped here, this would be

  a different case.  However, as described above, appellant

  continued to file more actions concerning what he perceived to

  be conspiracies related to, and arising out of, the two

  original suits.  As defendant pointed out in the motion for an

  injunction, since the parties and underlying events were

  connected, the proper course was for appellant to have asked

  the district court for leave to amend the already pending cases

  so that he could add new claims and/or defendants.  In most

  instances, though, this would have required prior court

  permission.

            The injunction entered by the district court

  essentially achieves this result by ordering appellant to seek

  approval before filing new actions against the Shrewsbury

  Police Department, its members, or any of the attorneys

  representing these parties.  Furthermore, in light of the

  purpose of the order and the language added at the end

  referring to relatedness, we read the injunction as limited to

  new cases connected to the ones currently pending.  So read,

  the injunction is "narrowly drawn to fit the specific vice

  encountered," see Castro, supra, 775 F.2d at 410, instead of

  being overbroad as it arguably would have been if it had

  prevented appellant from filing any new cases against these

  defendants.

            Finally, that appellant's behavior is vexatious and

  harassing is obvious.  That is, by filing new actions,

  appellant forces the defendants to answer each new complaint

  and to defend each new suit.  If appellant must obtain

  permission prior to filing a new case, as he would if he sought

  to amend the existing complaints, the defendants will be spared

  this additional effort and the associated expense.  As a

  result, the district court did not abuse its discretion in

  entering the above injunction.

            The judgments of the district court are affirmed.