Cok v. Forte ( 1995 )

USCA1 Opinion

          November 7, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 95-1458



                             GLADYS L. COK, ETC., ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                                    MICHAEL FORTE,



                                 Defendant, Appellee.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND





                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
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                                        Before



                                Cyr, Boudin and Lynch,

                                   Circuit Judges.
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            Gladys L. Cok on brief pro se.
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            Jeffrey  B.  Pine,  Attorney  General,  and  Richard  B.  Woolley,
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        Assistant Attorney General, on brief for appellee.





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                      Per Curiam.  Upon  review of the entire  record, we
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            agree that  the complaint  was properly dismissed  and affirm



            essentially  for  the  reasons  stated  in  the  magistrate's



            December  19,  1994,  report  and  recommendation  which  was



            adopted by the  district court.  Cok  v. Forte, 877  F. Supp.
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            797 (D.R.I. 1995).  We are also persuaded that the imposition



            of a  narrow, well-defined  injunction against  plaintiff Cok



            was  justified.    The  basis  for  the  injunction  is  well



            supported  in the record.  The filing restrictions set out in



            the order are  grounded in a  comprehensive history of  Cok's



            ten-years of litigation,  were entered after  notice, hearing



            and  the  opportunity  to   object,  and  are   unambiguously



            "tailored to  the specific circumstances presented."   Cok v.
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            Family  Court  of Rhode  Island, 985  F.2d  32, 34  (1st Cir.
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            1993).



                      We  add  these  additional  comments.    Plaintiffs



            contend that they never consented to have their case heard by



            a magistrate-judge, that the magistrate exceeded the scope of



            his authority and  that the district  judge, in adopting  the



            magistrate's recommended disposition, including  the proposed



            injunction, failed to conduct a de novo review as mandated by



            28 U.S.C.    636(b)(1)(C).  First,  while a magistrate  lacks



            authority to  issue a  dispositive order, including  an order



            allowing an injunction, without the consent of the parties to



            a decision by  a magistrate, 28  U.S.C.   636(c)(1),  section



































            636(b)(1)(B) permits a district  judge to refer a  motion for



            injunctive relief to a  magistrate for a proposed disposition



            without the  parties' consent.   Here, the  magistrate merely



            recommended the imposition of an injunction; he did not order



            it.    Second,  plaintiffs  filed timely  objections  to  the



            magistrate's report.  In  accepting that report, the district



            court especially noted and approved the wording of the narrow



            injunction proposed by the magistrate.  The docket shows that



            the district  judge had, on  a number of  occasions, examined



            Cok's claims before  referring them  to the  magistrate.   We



            will not presume, in  the absence of  contrary  indicia, that



            the district  court conducted anything other  than a complete



            review of  the record.  See United States v. Hamell, 931 F.2d
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            466, 468 (8th Cir.), cert. denied, 112 S. Ct. 347 (1991).
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                      Affirmed.
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                      Appellant's motion for oral argument is denied.
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                      Appellant's  request  for  declaratory   relief  is



            denied.
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