Bowler v. Maine, State of

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-1885
EUGENE B. BOWLER,
Plaintiff, Appellant,
v.
STATE OF MAINE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Eugene B. Bowler on brief pro se.
G. Steven Rowe, Attorney General, and William R. Fisher,
Assistant Attorney General, on brief for appellees.
December 27, 2001
Per Curiam. Eugene Bowler filed this pro se action
in an effort to challenge the constitutionality of Maine's
"stalking" statute. See 17-A Me. Rev. Stat. Ann. § 210-A. The
action ended up being dismissed because of his noncompliance
with a court order directing that he respond to defendants'
interrogatories (and their accompanying requests for production
of documents). See Fed. R. Civ. P. 37(b)(2)(C). Such a
disposition is reviewed only for abuse of discretion. See,
e.g., National Hockey League v. Metrop. Hockey Club, Inc., 427
U.S. 639, 642 (1976) (per curiam). Finding none, we affirm.
There is no need for extended discussion,
particularly since Bowler has offered little in the way of
pertinent argumentation on appeal. A number of factors support
the district court's decision. For example, the various
objections voiced by Bowler to the interrogatories prove to
have been baseless. He protested that providing complete
answers would impose an intolerable burden and would implicate
Fifth Amendment concerns, but he never elaborated in either
regard. He also complained that many of the questions were
"not relevant"--overlooking, among other things, the fact that
his as-applied constitutional challenges were necessarily fact-
dependent. In any event, whatever the merit of his objections,
Bowler persisted in his recalcitrance even after being ordered
to furnish appropriate responses. As to other points, we note
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that the interrogatories were limited in scope and number; that
defendants undertook no other discovery; that Bowler was
familiar with the judicial process; and that he likely would
not have prevailed on his underlying constitutional claims.
To be sure, Bowler could retort that he was appearing
pro se; that he had otherwise acted in prompt fashion; that the
case was relatively young; and that he had not been
specifically warned that dismissal might ensue. Yet he has not
done so.1 Instead, to excuse his noncompliance with the
district court order, Bowler points out that a challenge
thereto was pending before this court by way of a "petition for
writ of prohibition." This argument fails for several reasons.
First, that petition was patently without merit, inasmuch as
the discovery order was a garden-variety, discretionary ruling
that was neither appealable nor subject to mandamus review.
See, e.g., Bennett v. City of Boston, 54 F.3d 18, 20-21 (1st
Cir. 1995) (per curiam). Second, by the time the dismissal
here occurred, Bowler's petition had been denied by this court
and was the subject of a request for en banc review--a
frivolous filing. Finally, as the district court noted, Bowler
1
The cited factors would not have been dispositive in any
event. See, e.g., Velazquez-Rivera v. Sea-Land Service, Inc., 920
F.2d 1072, 1078 n.9 (1st Cir. 1990) (stopping short of any
suggestion that lack of prior warning was "controlling").
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never sought a stay of the discovery order pending his attempt
to obtain appellate relief.
Affirmed.
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