Thomas v. Salvation Army Southern Territory ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2214
SHARON T. THOMAS,
Plaintiff - Appellant,
v.
THE SALVATION ARMY SOUTHERN TERRITORY; F. BRADFORD BAILEY;
THE SALVATION ARMY; BOBBY LANCASTER; DERONDA METZ; BARBARA
GREEN; VICTORY CHRISTIAN CENTER, INCORPORATED; CHURCH IN THE
CITY MINISTRIES; CATHY DOE; FRIENDSHIP COMMUNITY DEVELOPMENT
CORPORATION, My Sister’s House Transitional Living Center;
IRIS HUBBARD,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:14-cv-00403-RJC-DCK)
Argued: September 21, 2016 Decided: November 8, 2016
Before WILKINSON and FLOYD, Circuit Judges, and Irene M. KEELEY,
United States District Judge for the Northern District of West
Virginia, sitting by designation.
Affirmed as modified by published opinion. Judge Wilkinson
wrote the opinion, in which Judge Floyd and Judge Keeley joined.
ARGUED: Gregory Dolin, UNIVERSITY OF BALTIMORE SCHOOL OF LAW,
Baltimore, Maryland, for Appellant. Matthew David Lincoln,
MOORE & VAN ALLEN PLLC, Charlotte, North Carolina, for
Appellees. ON BRIEF: Catherine Florea, Third Year Law Student,
Marie Langlois, Second Year Law Student, UNIVERSITY OF BALTIMORE
SCHOOL OF LAW, Baltimore, Maryland, for Appellant.
2
WILKINSON, Circuit Judge:
Sharon Thomas appeals the dismissal under 28 U.S.C.
§ 1915(e) of her claims against three charitable organizations,
which she says unlawfully refused to admit her to homeless
shelters because of her alleged mental health disability. We
affirm the judgment of dismissal as modified to indicate that it
be without prejudice.
I.
Thomas was receiving behavioral health services from
Monarch Mental Health Care, a non-profit organization, when she
became homeless on July 10, 2012. Monarch referred her to
defendant Salvation Army. When she arrived at the Salvation Army
shelter on July 12, 2012, Thomas completed some preliminary
paperwork, agreed to follow the shelter’s rules, and was
admitted.
The Salvation Army shelter was crowded, and on July 16, a
Salvation Army staff member informed Thomas that she would be
transferred to defendant Church in the City, a shelter run by
the third and final defendant, Victory Christian Center. 1 During
1 Thomas’s original complaint named an additional charity –
My Sister’s House – and various employees of the charities as
defendants. Her counseled brief advances arguments only against
the Salvation Army, Church in the City, and Victory Christian
Center. Because Thomas has waived claims against the other
defendants, we address only her claims against the Salvation
(Continued)
3
an intake interview with a Church in the City nurse, Thomas
disclosed her mental health issues. In her complaint, Thomas
describes Church in the City as having strict rules and as being
“very clean and quiet.” J.A. 13. Thomas stayed at Church in the
City for almost a month before being evicted, and she claims
that she followed all of the shelter’s rules during her stay.
While at Church in the City, Thomas visited the Salvation
Army shelter twice. First, on July 19, Thomas completed the
Salvation Army’s official intake assessment paperwork. In this
paperwork, Thomas disclosed that she was receiving behavioral
mental health services and authorized the release of some
medical information to the Salvation Army. Second, on July 31,
Thomas went to the Salvation Army to see a doctor to get
medication. Thomas does not specify what medication she was
receiving, but she notes that the doctor referred her to a
behavioral health center. On the same visit, Thomas met with her
Salvation Army case manager. The meeting included a discussion
of Thomas’s mental health issues.
Thomas’s problems with the shelters began on August 12,
when Church in the City evicted her. The shelter did not give
Thomas a reason for her ejection. Another woman was evicted at
Army, Church in the City, and Victory Christian Center. See
Slezak v. Evatt, 21 F.3d 590, 593 n.2 (4th Cir. 1994).
4
the same time for missing the shelter’s curfew, though Thomas
avers that she never missed curfew. Thomas’s complaint notes
that she had been given additional chores the day before –
cleaning three showers instead of two – by a volunteer who had,
a few weeks earlier, told Thomas not to question the Bible
during a Bible study class.
From August 12 through August 15, Thomas tried and failed
to be admitted to the Salvation Army shelter a number of times.
Immediately after being ejected from Church in the City, Thomas
went to the Salvation Army shelter. She was told that she would
not be allowed to stay there if she had been ejected from Church
in the City. That same day, Thomas was hospitalized for chest
pains, and a hospital social worker called the Salvation Army on
her behalf. The social worker was informed that Thomas’s
Salvation Army case worker had decided that Thomas would not be
admitted to the Salvation Army shelter.
Thomas herself called the Salvation Army twice the next
day, August 13. On the first phone call, Thomas’s case manager
told her that she had been ejected from Church in the City for
violating curfew. This call ended after Thomas accused her case
manager of acting unethically. On the second phone call, the
director of the Salvation Army shelter told Thomas she had been
ejected from Church in the City because she was not a good fit.
5
The following night, August 14, Thomas had nowhere to stay
and went to the police department for help. Two police officers
escorted her to the Salvation Army shelter, where she was again
denied entry. This time, a staff member told Thomas that the
director of the shelter had instructed her not to let Thomas
stay. The staff member did not give a specific reason for that
instruction but apparently believed it was due to mental health
issues and that if Thomas received a mental health evaluation,
she would be admitted to the shelter. Thomas went to a
psychiatric emergency room and was examined by a psychiatrist.
The next day, August 15, Thomas returned to the Salvation Army
shelter with her psychiatric discharge papers. She was again
refused admission to the shelter, though this time Thomas was
not given a reason for the denial.
Thomas does not allege that she sought admission at the
Salvation Army shelter after August 15, but she did continue to
seek an answer for why she had been denied admission. On
September 12, 2012, she received an email from the Area
Commander for the Salvation Army, explaining that he had
investigated her case and that the denial of services was
justified because Thomas had “exhibited disrespect and hostility
toward the staff.” J.A. 21. The Area Commander offered shelter
if Thomas submitted to “a mental health evaluation and
stabilization services from” a behavioral mental health
6
organization. J.A. 21. In response, Thomas requested records of
her stay and of the Salvation Army’s relationship with Church in
the City. On October 23, 2012, Thomas received an email from
another Salvation Army employee, denying her request for
records.
Nearly two years later, on July 24, 2014, Thomas filed this
action in the Western District of North Carolina, moving to
proceed in forma pauperis. The district court granted Thomas’s
motion. In the same order, however, the district court dismissed
all of Thomas’s claims under 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a claim on which relief could be granted. In
addition, the district court warned Thomas that if she continued
to file meritless lawsuits, it would require her to show cause
as to why the court should not enter a pre-filing injunction
against her. Thomas now appeals.
II.
Thomas challenges the dismissal of her claims under 42
U.S.C. § 1983, 42 U.S.C. § 1985, the Americans with Disabilities
Act (“ADA”), the Fair Housing Act (“FHA”), and the
Rehabilitation Act. The district court dismissed these claims
under 28 U.S.C. § 1915(e)(2)(B)(ii). “The standards for
reviewing a dismissal under § 1915(e)(2)(B)(ii) are the same as
those for reviewing a dismissal under Federal Rule of Civil
Procedure 12(b)(6).” De'Lonta v. Angelone, 330 F.3d 630, 633
7
(4th Cir. 2003). Thus, we review this dismissal de novo and
accept pleaded facts as true. King v. Rubenstein, 825 F.3d 206,
212, 214 (4th Cir. 2016). While we construe allegations in a pro
se complaint liberally, a complaint still “must contain ‘enough
facts to state a claim for relief that is plausible on its
face.’” Id. at 214 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). We shall address each of Thomas’s various
claims in turn. 2
A.
Thomas’s § 1983 claim cannot proceed because none of the
defendants are state actors. To state a claim under § 1983, a
plaintiff must allege that he was “deprived of a right secured
by the Constitution or laws of the United States, and that the
alleged deprivation was committed under color of state law.” Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). The
color of law requirement “excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.” Id. at 50
(internal quotations omitted). In rare cases, the state can “so
dominate[] [private] activity as to convert it to state action.”
2
Thomas advances arguments for her § 1983 and § 1985 claims
in her informal brief but not in her counseled brief.
Appellant’s Reply Br. 2 n.1. We have held in similar
circumstances that this results in waiver of the claims. Slezak,
21 F.3d at 593 n.2 (declining to consider issues not raised in
counseled brief). Nonetheless, we will in the exercise of our
discretion address her § 1983 and § 1985 claims.
8
Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 181 (4th Cir.
2009). The defendants here are three private charities, and
Thomas has not alleged any facts that even remotely suggest that
defendants’ actions were attributable to the state. Without
state action, Thomas has no § 1983 claim.
B.
Thomas’s § 1985 claim of a civil conspiracy between the
Salvation Army and Church in the City must also be dismissed
because there are no allegations to support the existence of any
conspiracy. To bring a claim under 42 U.S.C. § 1985, a plaintiff
must show:
(1) a conspiracy of two or more persons, (2) who are
motivated by a specific class-based, invidiously
discriminatory animus to (3) deprive the plaintiff of
the equal enjoyment of rights secured by the law to
all, (4) and which results in injury to the plaintiff
as (5) a consequence of an overt act committed by the
defendants in connection with the conspiracy.
Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995). Allegations
of “parallel conduct and a bare assertion of a conspiracy” are
not enough for a claim to proceed. A Soc'y Without A Name v.
Virginia, 655 F.3d 342, 347 (4th Cir. 2011) (quoting Twombly,
550 U.S. at 556).
Thomas provides no facts to suggest that the Salvation Army
and Church in the City conspired to do anything, much less to
deprive her of rights because of her alleged mental disability.
For example, Thomas claims that her Salvation Army
9
identification badge included a mention of Church in the City
and that she was told she could not return to the Salvation Army
after being evicted from Church in the City. But these facts do
not show any coordination or conspiracy – they simply show two
charities working to help the same population of homeless people
in Charlotte. Thomas’s complaint offers only conclusory
allegations that the Salvation Army conspired with Church in the
City, and that is not enough to proceed on a claim under § 1985.
C.
Thomas also raises a claim under the Americans with
Disabilities Act but lacks standing to bring it. Title III of
the ADA prevents discrimination on the basis of a disability in
places of public accommodation. 42 U.S.C. § 12182. It provides a
private right of action for injunctive relief but no right of
action for monetary relief. 42 U.S.C. § 12188; see also Ervine
v. Desert View Reg’l Med. Ctr. Holdings, LLC, 753 F.3d 862, 867
(9th Cir. 2014) (“Damages are not an available remedy to
individuals under Title III of the ADA; individuals may receive
only injunctive relief.”). Injunctive relief, however, “is
unavailable absent a showing of irreparable injury, a
requirement that cannot be met where there is no showing of any
real or immediate threat that the plaintiff will be wronged
again.” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
10
Thomas fails to show any real or immediate threat that she
will be wronged again. Any denial of access to the shelters
occurred almost two years before Thomas filed this action. Her
complaint does not allege that she is still homeless or that the
defendants would still deny her access to the shelters because
of her disability. Moreover, Thomas indicates that she filed her
complaint “due [to] the persistent and distressing memories and
thoughts about the experiences of abuse and discrimination,”
J.A. 24, not to prevent future discrimination. Without the
threat of future harm, Thomas is not entitled to injunctive
relief and thus has no valid claim under Title III of the ADA.
In dismissing Thomas’s ADA claim for failure to exhaust
administrative remedies, the district court erred by
characterizing her claim as an employment claim under Title I of
the ADA. The district court was correct that Title I requires a
plaintiff to exhaust administrative remedies by filing a charge
with the Equal Employment Opportunity Commission before pursuing
litigation in federal court. 42 U.S.C. § 12117; see also Sydnor
v. Fairfax Cnty., 681 F.3d 591, 593 (4th Cir. 2012). But because
Thomas’s claims do not concern her employment, they do not fall
under Title I and thus are not subject to the administrative
exhaustion requirement. McInerney v. Rensselaer Polytechnic
Inst., 505 F.3d 135, 138 (2d Cir. 2007) (per curiam) (“Title
III, unlike Title I, does not require administrative
11
exhaustion.”). Nonetheless, we may affirm the district court on
alternate grounds, Cochran v. Morris, 73 F.3d 1310, 1315 (4th
Cir. 1996) (en banc), and we have done so here.
In her original complaint, Thomas cites the sections of the
ADA that comprise Title II. Title II, however, applies only to
“the services, programs, or activities of a public entity.” 42
U.S.C. § 12132; see also Pa. Dep’t of Corr. v. Yeskey, 524 U.S.
206, 209 (1998). None of the defendants here are public
entities, so Thomas cannot proceed under Title II of the ADA
either.
D.
Thomas’s FHA claim was properly dismissed because her
complaint does not contain a plausible allegation of
discrimination. As relevant here, the FHA makes it unlawful to
“make unavailable or deny . . . a dwelling to any buyer or
renter because of a handicap,” 42 U.S.C. § 3604(f)(1), or to
“discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling . . . because of a
handicap.” 42 U.S.C. § 3604(f)(2). A handicap is “a physical or
mental impairment which substantially limits one or more of such
person's major life activities.” 42 U.S.C. § 3602(h). The
Salvation Army argues that homeless shelters are not covered
under § 3604(f) because the residents are not buyers or renters
and because a homeless shelter does not meet the definition of a
12
dwelling under the FHA. Courts have differed on these points.
See, e.g., Hunter ex rel. A.H. v. D.C., 64 F. Supp. 3d 158, 177
(D.D.C. 2014) (homeless shelter is a dwelling under the FHA);
Intermountain Fair Hous. Council v. Boise Rescue Mission
Ministries, 717 F. Supp. 2d 1101, 1109 (D. Idaho 2010), aff'd on
other grounds, 657 F.3d 988 (9th Cir. 2011) (homeless shelter is
not a dwelling under the FHA). We see no need to reach these
questions here because Thomas’s complaint independently suffers
from serious defects, as discussed below.
One such defect is that Thomas’s complaint fails to
adequately identify her mental disability. Thomas provides
limited evidence in her complaint that she has some type of
mental illness – she received care from a behavioral health
organization, she had an appointment with a doctor, and she was
on medication. In her informal appellate brief, Thomas specifies
her mental illness as a mood disorder. This evidence, though,
does not suggest that her mental illness is a handicap covered
by the FHA. Moreover, Thomas alleges that she was “mentally
stable” and that the mental evaluation requested by the
Salvation Army was “unnecessary.” J.A. 5, 20. These facts do not
give rise to a “reasonable inference,” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009), that Thomas is handicapped under the FHA.
Another defect is that Thomas’s complaint does not draw a
sufficient nexus of causation between whatever mental illness
13
she may have and the defendants’ actions. To state a claim under
the FHA, Thomas must show that the defendants denied her housing
“because of” her handicap. 42 U.S.C. § 3604(f)(1). Thomas’s
allegation against Church in the City on this point is purely
conclusory. Church in the City did not give Thomas a reason for
the denial of shelter, and nothing in Thomas’s complaint
suggests that the denial was because of her alleged mental
disability. While Thomas’s allegations against the Salvation
Army are somewhat more detailed, the complaint does not make a
plausible allegation that the Salvation Army unlawfully denied
Thomas shelter “because of” a mental disability. Even when
construed liberally and with all reasonable inferences made in
Thomas’s favor, De’Lonta, 330 F.3d at 633, this is not a “claim
to relief that is plausible on its face,” Twombly, 550 U.S. at
570.
The communications between the Salvation Army and Thomas
indicate that the Salvation Army had legitimate reasons to be
wary of admitting Thomas and sought reasonable reassurance that
Thomas would not cause problems as a resident. The most detailed
explanation of the Salvation Army’s concerns was in the
September 12, 2012 email sent by the Area Commander for the
Salvation Army summarizing his investigation of Thomas’s
situation: “Your actions during your time at the shelter
exhibited disrespect and hostility toward the staff that was
14
endeavoring to help you, therefore you were asked to leave the
facility.” J.A. 21. The email also offered shelter if Thomas
would “receive a mental health evaluation and stabilization
services.” J.A. 21. It is not reasonable to read this email as
evidence that the Salvation Army refused to admit Thomas because
of a mental disability. Rather, it is clear that the Salvation
Army’s decision to deny Thomas access was an effort to exercise
prudence and to ensure that, with the support of appropriate
medical evidence, any mental condition of hers was under
control. This is consistent with the only other instance in
Thomas’s complaint of a Salvation Army staff member referencing
her mental illness. In denying her access to the shelter, the
staff member suggested Thomas would be readmitted if she
obtained a mental health evaluation. J.A. 19.
The Salvation Army was within its rights to require
reasonable steps to ensure that Thomas was stable before
admitting her to the shelter. The Salvation Army is charged with
protecting all of those in its shelters, and it simply cannot
run the serious risk of admitting a resident who will be
disruptive and may inflict harm on others. Admitting such a
resident jeopardizes the safety of other residents and may
subject the shelter to significant liability. See e.g. Corporan
v. Barrier Free Living Inc., 19 N.Y.S.3d 160 (N.Y. App. Div.
2015) (affirming denial of homeless shelter’s motion for summary
15
judgment where factual issues existed as to whether fatal attack
by resident was foreseeable); Keri Blakinger & Reuven Blau, NYC
Shelter to Pay $1.2M to Stabbed Resident’s Kin, N.Y. DAILY NEWS,
March 31, 2016, at 22 (describing $1.2 million settlement in
Corporan).
If denying access to an unstable applicant subjected a
shelter to extended litigation and potential liability, the
shelter would be faced with a difficult dilemma. Charitable
organizations would be subject to liability whichever way they
turned. Denial of access would lead to lawsuits like this one,
and ill-advised grants of access could lead to staggering
judgments against the charitable organization if another
resident was seriously harmed. The time and expense involved in
all of this would risk impairing the humane mission of
sheltering homeless persons that is these organizations’ very
reason for being.
In fact, Congress anticipated this very problem and
repeatedly declined to extend statutory protection to
individuals who present a threat to public health or the safety
of others. See 42 U.S.C. § 3604(f)(9) (“Nothing in [the FHA]
requires that a dwelling be made available to an individual
whose tenancy would constitute a direct threat to the health or
safety of other individuals or whose tenancy would result in
substantial physical damage to the property of others.”); 42
16
U.S.C. § 12182(b)(3) (“Nothing in [the ADA] shall require an
entity to permit an individual to participate in or benefit from
the goods, services, facilities, privileges, advantages and
accommodations of such entity where such individual poses a
direct threat to the health or safety of others.”); McGeshick v.
Principi, 357 F.3d 1146, 1151 (10th Cir. 2004) (“[I]t is a
defense to claims under the Rehabilitation Act that [a
plaintiff] may pose a ‘direct threat’ to the welfare of
others.”). The district court was right not to put the shelter
between a rock and a hard place by imposing liability for
exercising prudence in the course of its admissions decisions.
In an effort to clear the bar of plausibility, Iqbal, 556
U.S. at 678, Thomas claims in her complaint that “[t]here were
no instances . . . of conflict with staff,” J.A. 21, but this
assertion seems limited to her brief stay at the Salvation Army
before she was transferred to the Church in the City. Her own
descriptions of her later interactions with Salvation Army staff
do not serve to undermine the Salvation Army’s explanation. In
fact, those descriptions indicate the possibility of hostility,
including Thomas’s accusations of unethical staff conduct and
her threats of legal action. See J.A. 17, 20. Moreover, Thomas’s
alleged mental health problems are not inconsistent with hostile
interactions with staff members. In short, these problems may
have contributed to any unfortunate friction.
17
Thomas argues that she received different explanations from
different Salvation Army staff members for refusing to admit
her. These explanations, however, show once again the Salvation
Army exercising caution when confronted with a potentially
disruptive resident, and any minor inconsistencies are evidence
of multiple shelter employees dealing with a difficult
situation. Cf. Price v. Thompson, 380 F.3d 209, 217 n.5 (4th
Cir. 2004) (finding inconsistencies that “ar[o]se from reading
applications hastily or from being nervous during depositions”
were not evidence of pretext).
Thomas also complains that the Salvation Army did not
accept her discharge papers from the emergency room as a mental
health evaluation. These papers were the result of a brief
consultation and fell short of being the considered opinion of a
mental health professional. The Salvation Army was under no
obligation to accept such an abbreviated assessment as an
adequate response to its offer of shelter if Thomas submitted to
a fuller mental health evaluation from a behavioral health
organization.
In sum, Thomas’s complaint does not contain “factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. Because we cannot make a reasonable inference
from her complaint – even when liberally construed – that Thomas
18
is handicapped under the FHA or that the defendants
impermissibly denied Thomas shelter because of her mental
illness, Thomas’s FHA claim must be dismissed.
E.
Finally, Thomas’s claim under the Rehabilitation Act was
also properly dismissed. As with the ADA and the FHA, the
Rehabilitation Act forbids discrimination based on a disability.
The Rehabilitation Act, though, differs in two key ways. First,
it applies only to programs receiving federal assistance. 29
U.S.C. § 794; see also Disabled in Action v. Mayor & City
Council of Baltimore, 685 F.2d 881, 883 (4th Cir. 1982). Second,
the Rehabilitation Act requires that a plaintiff show that the
exclusion was “solely by reason of her or his disability.” 29
U.S.C. § 794. This is a stricter causation requirement than the
ADA or FHA, under which the disability can be one of multiple
causes. Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454,
461-62 (4th Cir. 2012) (“To succeed on a claim under the
Rehabilitation Act, the plaintiff must establish he was excluded
‘solely by reason of’ his disability; the ADA requires only that
the disability was ‘a motivating cause’ of the exclusion.”);
Asbury v. Brougham, 866 F.2d 1276, 1279 (10th Cir. 1989)
(holding the discriminatory reason “need not be the only factor
in the decision” for a violation of the FHA).
19
Thomas’s complaint alleges that the Salvation Army received
federal funding; there is no similar allegation for Church in
the City or Victory Christian Center. Assuming that the
Salvation Army would be subject to the Rehabilitation Act,
Thomas’s claim should nonetheless be dismissed for the same
reasons as her FHA claim. Thomas’s complaint fails to allege (1)
a mental illness that would qualify as a disability under the
Act or (2) a nexus between the Salvation Army’s decision not to
admit her and her alleged mental disability. The heightened
causation required for the Rehabilitation Act claim makes the
inadequacy of Thomas’s complaint even more apparent.
F.
Because we affirm the district court’s dismissal of all of
Thomas’s federal claims, we also affirm its decision to decline
to exercise supplemental jurisdiction and thus to dismiss
Thomas’s state law claims without prejudice. See Shanaghan v.
Cahill, 58 F.3d 106, 110 (4th Cir. 1995).
III.
The district court was right to dismiss the complaint given
its multiple deficiencies, namely the omission of the nature of
any illness much less the presence of such illness as a
causative agent of the Salvation Army’s decision. The Salvation
Army was justified in exercising prudence, protecting other
residents and its staff, and requesting a more thorough
20
evaluation of Thomas’s mental health. Thomas has not thrown this
reasonable explanation into plausible doubt. Twombly, 550 U.S.
at 570. We therefore affirm the district court. We note that
Thomas did not have an opportunity to respond before the
district court dismissed her complaint sua sponte or an
opportunity to amend her complaint. Thus, we modify the judgment
only to the extent that the dismissal be without prejudice. 3
AFFIRMED AS MODIFIED
3 As the district court noted, Thomas has filed at least
eight lawsuits in the Western District of North Carolina,
prevailing in none, and at least five additional suits in the
Middle District of North Carolina. J.A. 59. Our opinion herein
does not reflect on whether Thomas should be subject to a pre-
filing injunction, a matter we leave to the district court in
the first instance.
21