Hart v. United States ( 1994 )

USCA1 Opinion

          December 30. 1994
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT





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        No. 94-1604

                                    WILFRED HART,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
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                                        Before

                                Torruella, Chief Judge,
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                          Bownes, Senior Circuit Judge, and
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                                Stahl, Circuit Judge.
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            Wilfred Hart, Jr., on brief pro se.
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            Jay  P.  McCloskey,  United  States  Attorney,  and  Margaret   D.
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        McGaughey, Assistant United States Attorney, on brief for appellee.
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                      Per  Curiam.  Plaintiff-appellant Wilfred Hart, Jr.
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            has appealed from a district court order denying him leave to

            file a motion to dissolve a district court injunction barring

            him from certain filings  without leave of court.   We affirm

            the district court's ruling.

                 On  June  23,  1992,  the  district  court  entered  the

            following injunction against Hart:


                    It  is hereby  ORDERED that  Wilfred  Hart is
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                    enjoined from filing  any motions,  pleadings
                    or papers of whatever  type or description in
                    the District of Maine, in connection with his
                    1988  conviction   for  controlled  substance
                    violations  without  prior  leave  of  Court.
                    Hart  may seek  leave  of Court  by filing  a
                    summary of the claims  he seeks to raise (not
                    to  exceed one page  per claim) together with
                    an affidavit certifying  that the claims  are
                    novel  and have  not  previously been  raised
                    before this Court or any other federal court.
                    Upon failure  to so certify or  failure to so
                    certify  truthfully,  Hart  may be  found  in
                    contempt of court and punished accordingly.


          The  injunction was issued in response to what the district court

          described  as Hart's "frivolous motions and duplicative pleadings

          which  encroach on the Court's limited time  and resources, . . .

          which can only be calculated to disrupt the orderly consideration

          of  cases, .  .  . and  which  merely restate  claims  which have

          already made [sic] and which have been denied."

                 Hart  appealed the injunction  to this  court, challenging

          its  legality  and  constitutionality  on a  number  of  grounds,

          including  vagueness.  On March 21, 1994, this court rejected all



















          of  Hart's  challenges, and  affirmed  the injunction.    Hart v.
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          United States, slip op., nos. 92-1801, 92-2292, 92-2449 (1st Cir.
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          3/21/94)  (unpublished).   We  stated that  we  would "leave  the

          construction of the injunction to the district court in the first

          instance."  Id. at 6.
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                 On May 20, 1994, Hart filed a motion for leave of court to

          file  an accompanying motion for  a three-judge panel to dissolve

          the  injunction.  The  underlying motion to  dissolve argued that

          the  district court's "operative  construction" of the injunction

          was so narrow as to unconstitutionally limit Hart's access to the

          courts.   On the same day,  the district court denied  the motion

          for  leave of  court,  endorsing  it  as  follows:    "Claim  has

          previously  been  raised  and  is  therefore  not  novel."   Hart

          appeals.

                 On the surface,  it would seem  that in his May  20 motion

          Hart did seek to  raise an issue not  raised in his appeal.   The

          appeal upheld the facial terms of the  injunction, whereas Hart's

          May  20 motion  seems to  challenge the constitutionality  of the

          manner  in  which  the district  court  has  later construed  and

          applied the injunction.  In fact, however, Hart's motion fails to

          specify  in what way the district court should be thought to have

          applied  the injunction  in an  unconstitutional manner.   Hart's

          motion, therefore, appears to be, in substance, nothing more than

          another attack on the terms of the injunction.  Such an attack is

          not novel, having already been mounted in Hart's prior appeal.



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                 In any event, even if Hart's motion were to be regarded as

          raising  a  novel claim,  we would  affirm  its dismissal  on the

          ground  that it  was frivolous.   Insofar  as Hart's  motion once

          again challenges  the terms of the injunction,  res judicata bars

          any relief  by virtue of our prior ruling.  Insofar as the motion

          does   assert  that  the  injunction  has   been  applied  in  an

          unconstitutional manner, the  motion provides no basis for such a

          conclusion.    Any  challenge  to the  injunction's  application,

          moreover,  should  properly be  raised  in  conjunction with  the

          particular  matter to  which  the injunction  allegedly has  been

          improperly  applied.  Finally, the motion's request that a three-

          judge court be convened to consider the matter is frivolous.

                 The ruling of the district court is affirmed.
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