Doe v. Harvard ( 1995 )

USCA1 Opinion

          May 25, 1995

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 95-1152



                                       J. DOE,



                                Plaintiff, Appellant,



                                          v.



                                 HARVARD UNIVERSITY,



                                 Defendant, Appellee.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Edward F. Harrington, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                           Selya and Stahl, Circuit Judges.
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            J. Doe on brief pro se.
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            Robert  W. Iuliano, Office  of the  General Counsel,  on brief for
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        appellee.



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                      Per  Curiam.       Appellant  J.  Doe  appeals  the
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            dismissal   of  her  suit   against  Harvard   University  as



            frivolous, pursuant to 28 U.S.C.   1915(d).  Doe also alleges



            that the district court  erred in denying her request  for an



            extension of time to reply to the court order of December 20,



            1994, requiring  her to show  cause, within twenty  days, why



            her  case should not be dismissed.  Finally, she asserts that



            the  district court  judge should  have recused  himself from



            this case.



                 Section 1915(d) provides  the district court  discretion



            to dismiss an in forma pauperis action where, inter alia, the
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            claim is  "based on an indisputably  meritless legal theory."



            Neitzke v.  Williams, 490  U.S.  319, 325  (1989); Watson  v.
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            Caton, 984  F.2d 537, 539  (1st Cir.  1993).  In  the instant
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            case,  each  of the  four claims  raised  by Doe  was legally



            meritless.



                 Two  claims arise out of the same series of events which



            formed the basis of Doe's previously dismissed action against



            Harvard.1   Although  Doe raises different legal  theories in



            the instant case,  her claims are nevertheless barred  by the



            doctrine of res judicata since  they involve the same parties
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            and arise  "from the same set  of operative facts."   Kale v.
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            Combined Insurance Co., 924 F.2d 1161, 1166 (1st Cir.), cert.
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            1.  This court affirmed the district court dismissal of Doe's

            prior  action in  an  unpublished opinion  dated October  12,

            1994.



























            denied,  502  U.S.  816  (1991).    Repetitious  actions  are
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            appropriate for dismissal pursuant  to section 1915(d).  See,
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            e.g., Aziz v. Burrows,  976 F.2d 1158, 1158 (8th  Cir. 1992);
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            Wilson  v. Lynaugh,  878  F.2d  846,  850 (5th  Cir.),  cert.
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            denied, 493 U.S. 969 (1989).
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                 Doe's claim  pursuant to  the Family  Educational Rights



            and Privacy  Act  [FERPA],  20 U.S.C.     1232,  is  likewise



            without  legal merit since  FERPA does  not create  a private



            right of action.  See, e.g., Fay v.  South Colonie Cent. Sch.
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            Dist., 802 F.2d 21, 33 (2d Cir. 1986).
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                 Finally, Doe's  allegation that  Harvard  was guilty  of



            civil  contempt for  violating a  court order  issued in  the



            prior case cannot constitute  an independent cause of action.



            See, e.g., D. Patrick Inc. v. Ford Motor Co., 8 F.3d 455, 459
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            (7th  Cir. 1993) ("there is  no such thing  as an independent



            cause  of action  for  civil contempt")  (quoting Blalock  v.
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            United States, 844 F.2d 1546, 1550 (11th Cir. 1988)).
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                 Furthermore,  we find  no  error in  the  denial by  the



            district court of Doe's  request for an extension of  time in



            which  to file her  response to the show  cause order.  Doe's



            claim that the district judge  should have recused himself is



            neither  supported by  the record nor  is it  properly before



            this court since it was  not raised below.  See In  re Abijoe
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            Realty  Corp.,   943  F.2d   121,  126-27  (1st   Cir.  1991)
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                                         -3-



























            (dismissing  disqualification  claim not  raised  in district



            court).



                 Affirmed.
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