L'Heureux v. Whitman ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ____________________







        No. 96-1821





                                  RONALD L'HEUREUX,



                                     Petitioner,



                                          v.



                         WALTER WHITMAN, WARDEN, ACI, ET AL.,



                               Defendants, Respondents.



                                 ____________________





                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                     [Hon. Ernest C. Torres, U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                           Stahl and Lynch, Circuit Judges.
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                                 ____________________



            Ronald L'Heureux on brief pro se.
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            Elisabeth  A.  Wallace,  Special Assistant  Attorney  General,  on
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        Memorandum in  Support of  Appellees' Motion to  Dismiss Appeal  or to

        Summarily Affirm the Judgment Below, for appellees.





                                 ____________________



                                   OCTOBER 9, 1997

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                 Per  Curiam.  Appellant  Ronald  L'Heureux  appeals  the
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            dismissal by  the district  court of  his complaint  alleging



            violation of his civil rights and seeking to hold  defendants



            in contempt for  violation of the Morris  and DeFusco consent
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            decrees.  Having reviewed carefully the record in  this case,



            we vacate the dismissal in part and affirm it in part.



                 The  district  court  in  the  instant  case  based  its



            dismissal  on the report and recommendation of the magistrate



            judge.    That  report found  that  the  complaint should  be



            dismissed  for  three  separate  reasons.     None,  however,



            suffices to sustain dismissal of the entire complaint.



                 First,  the  magistrate  judge  found  that  L'Heureux's



            amended complaint violated a court  order to file a short and



            plain statement of his claim  as required by Fed. R. Civ.  P.



            8(a)  and that violation  of that order  supported dismissal.



            Yet,  while  L'Heureux's   complaint  is   indeed  long   (15



            handwritten  single spaced pages) and at many times rambling,



            it sufficiently fulfills the purpose  of Fed. R. Civ. P. 8(a)



            so as  not to be  in violation  of the previous  court order.



            The purpose of Fed. R. Civ.  P. 8(a) is to give "fair  notice



            [to the defendants]  of the claim asserted."   See Simmons v.
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            Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995).  Dismissal is usually
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            "reserved  for  those  case  in  which  the  complaint is  so



            confused,  vague, or otherwise  unintelligible that  its true



            substance,  if any, is  well disguised."   See  Salahuddin v.
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            Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).  L'Heureux's complaint
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            seems to give fair  notice of at least two claims, neither of



            which  appears  frivolous on  its  face.   First,  he alleges



            various violations of the DeFusco consent decree and seeks to
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            have defendants held  in contempt, the appropriate  means for



            seeking to  enforce compliance  with a  consent decree.   See
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            Martel v. Fridovich, 14 F.3d 1, 3 n.4 (1st Cir. 1993).  Also,
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            he  alleges  several  instances  of  defendants'  retaliating



            against him for  the exercise of  his right of access  to the



            courts.  Therefore, dismissal of the complaint as a violation



            of the order  to comply  with Rule  8(a) was  improper.   See
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            Simmons,  49  F.3d  at  88  ("Dismissal  with  prejudice  was
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            inappropriate   because   the    amended   complaint   stated



            nonfrivolous  claims and  sufficed  to  give  notice  of  the



            substance,  and   many  of  the  details,   of  [defendant's]



            claims.").



                 The  magistrate judge also  recommended dismissal on the



            ground that L'Heureux  had not opposed defendants'  motion to



            dismiss.   However, the  local rule on  which the  magistrate



            judge  relied for his  recommendation allows for  granting an



            unopposed order only when to do  is "just."  For the  reasons



            elsewhere in this  opinion, we do not find  that dismissal of



            the entire complaint in this case to have been just.



                 Finally, the magistrate  judge recommended dismissal  on



            the  basis of Fed.  R. Civ. P.  12(b)(6).   In particular, he







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            found  that some  of  L'Heureux's  complaints repetitious  of



            claims in other suits and others too insubstantial to state a



            claim for relief.  Both grounds are sufficient for dismissing



            most claims.   In particular,  L'Heureux's retaliation  claim



            appears  duplicative  of another  case  currently pending  in



            federal  court and thus properly  subject to dismissal.  See,
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            e.g., I.A. Durbin v. Jefferson National Bank,  793 F.2d 1541,
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            1551  (11th  Cir.  1986) ("it  is  well  established  that as



            between  federal district courts, the general principle is to



            avoid  duplicative  litigation")(citing   cases).    However,



            nothing in the  record indicates that the  alleged violations



            of  the consents  decree are duplicative  of claims  in other



            cases.    Moreover,  at least some  of L'Heureux's  claims of



            consent decree  violations seem  supported with  sufficiently



            specific  allegations  to  withstand   dismissal  under  Rule



            12(b)(6),  at  least  without  further   explication  by  the



            district court.



                 We  of course  hazard no  opinion  as to  the merits  of



            L'Heureux's claims.



                 The order of  dismissal is vacated as far  as it relates
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            to the claims of consent decree violations.  The dismissal of



            the  other claims  is affirmed.    The case  is remanded  for
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            further proceedings in accord with this opinion.















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