Peter J. Malley v. New York City Board of Education City of New York

112 F.3d 69

Peter J. MALLEY, Plaintiff-Appellant,
v.
NEW YORK CITY BOARD OF EDUCATION; City of New York,
Defendants-Appellees.

No. 1186, Docket 96-9013.

United States Court of Appeals,
Second Circuit.

Argued April 14, 1997.
Decided April 23, 1997.

Peter J. Malley, pro se, Clifton, New Jersey, for Plaintiff-Appellant.

Stuart D. Smith, Assistant Corporation Counsel, City of New York, New York City, for Defendants-Appellees.

Before: FEINBERG, WINTER and PARKER, Circuit Judges.

PER CURIAM:

1

Peter Malley appeals from Judge Keenan's order denying relief under Rule 60(b), Fed.R.Civ.P., from an injunction prohibiting appellant from filing future complaints in the Southern District of New York without first obtaining permission from a judge of that court. Malley has filed repetitive actions concerning his discharge as a New York City school teacher and revocation of his teaching license. These actions have just as repetitively been dismissed on statute of limitations and res judicata grounds. Malley was warned after the third such action that further such complaints might result in sanctions like the injunction now under review. Undeterred, Malley filed a fourth such complaint that was dismissed with yet another warning. Malley then filed the instant matter, dismissed again for the usual reasons, but this time the district court imposed the injunction from which Malley now appeals.

2

Malley has amply demonstrated that neither the lack of success of his actions nor the warnings of the district court will cause him to cease his abuse of the judicial process. We therefore affirm the injunction as granted. See In re Martin-Trigona, 737 F.2d 1254, 1261 (2d Cir.1984) (injunction is appropriate where plaintiff "abuse[s] the process of the Courts to harass and annoy others with meritless, frivolous, vexatious or repetitive ... proceedings" (internal quotation and citation marks omitted)).

3

Appellees advise us that Malley has filed two other actions of the same nature in the District of New Jersey, although they were subsequently withdrawn. They also inform us that Malley, faced with the injunction issued in the instant case, has now filed yet another repetitious action, but this time in the Eastern District of New York. They ask us to broaden the injunction beyond the Southern District to all federal courts. We see no barrier to a broader injunction in light of the warnings previously issued to Malley and of his persistence in pursuing the same meritless claims wherever his papers are accepted by a clerk of court. See id. at 1262 (approving injunction restricting new actions in all federal courts). However, we believe that such an order should be considered and fashioned in the first instance by the district court. We therefore remand the request to broaden the injunction.

4

Affirmed in part and remanded in part.