
USCA1 Opinion

	




          December 30. 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1604                                    WILFRED HART,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Bownes, Senior Circuit Judge, and                                  ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________            Wilfred Hart, Jr., on brief pro se.            ________________            Jay  P.  McCloskey,  United  States  Attorney,  and  Margaret   D.            __________________                                   _____________        McGaughey, Assistant United States Attorney, on brief for appellee.        _________                                 ____________________                                 ____________________                      Per  Curiam.  Plaintiff-appellant Wilfred Hart, Jr.                      ___________            has appealed from a district court order denying him leave to            file a motion to dissolve a district court injunction barring            him from certain filings  without leave of court.   We affirm            the district court's ruling.                 On  June  23,  1992,  the  district  court  entered  the            following injunction against Hart:                    It  is hereby  ORDERED that  Wilfred  Hart is                                   _______                    enjoined from filing  any motions,  pleadings                    or papers of whatever  type or description in                    the District of Maine, in connection with his                    1988  conviction   for  controlled  substance                    violations  without  prior  leave  of  Court.                    Hart  may seek  leave  of Court  by filing  a                    summary of the claims  he seeks to raise (not                    to  exceed one page  per claim) together with                    an affidavit certifying  that the claims  are                    novel  and have  not  previously been  raised                    before this Court or any other federal court.                    Upon failure  to so certify or  failure to so                    certify  truthfully,  Hart  may be  found  in                    contempt of court and punished accordingly.          The  injunction was issued in response to what the district court          described  as Hart's "frivolous motions and duplicative pleadings          which  encroach on the Court's limited time  and resources, . . .          which can only be calculated to disrupt the orderly consideration          of  cases, .  .  . and  which  merely restate  claims  which have          already made [sic] and which have been denied."                 Hart  appealed the injunction  to this  court, challenging          its  legality  and  constitutionality  on a  number  of  grounds,          including  vagueness.  On March 21, 1994, this court rejected all          of  Hart's  challenges, and  affirmed  the injunction.    Hart v.                                                                    ____          United States, slip op., nos. 92-1801, 92-2292, 92-2449 (1st Cir.          _____________          3/21/94)  (unpublished).   We  stated that  we  would "leave  the          construction of the injunction to the district court in the first          instance."  Id. at 6.                      __                 On May 20, 1994, Hart filed a motion for leave of court to          file  an accompanying motion for  a three-judge panel to dissolve          the  injunction.  The  underlying motion to  dissolve argued that          the  district court's "operative  construction" of the injunction          was so narrow as to unconstitutionally limit Hart's access to the          courts.   On the same day,  the district court denied  the motion          for  leave of  court,  endorsing  it  as  follows:    "Claim  has          previously  been  raised  and  is  therefore  not  novel."   Hart          appeals.                 On the surface,  it would seem  that in his May  20 motion          Hart did seek to  raise an issue not  raised in his appeal.   The          appeal upheld the facial terms of the  injunction, whereas Hart's          May  20 motion  seems to  challenge the constitutionality  of the          manner  in  which  the district  court  has  later construed  and          applied the injunction.  In fact, however, Hart's motion fails to          specify  in what way the district court should be thought to have          applied  the injunction  in an  unconstitutional manner.   Hart's          motion, therefore, appears to be, in substance, nothing more than          another attack on the terms of the injunction.  Such an attack is          not novel, having already been mounted in Hart's prior appeal.                                         -3-                 In any event, even if Hart's motion were to be regarded as          raising  a  novel claim,  we would  affirm  its dismissal  on the          ground  that it  was frivolous.   Insofar  as Hart's  motion once          again challenges  the terms of the injunction,  res judicata bars          any relief  by virtue of our prior ruling.  Insofar as the motion          does   assert  that  the  injunction  has   been  applied  in  an          unconstitutional manner, the  motion provides no basis for such a          conclusion.    Any  challenge  to the  injunction's  application,          moreover,  should  properly be  raised  in  conjunction with  the          particular  matter to  which  the injunction  allegedly has  been          improperly  applied.  Finally, the motion's request that a three-          judge court be convened to consider the matter is frivolous.                 The ruling of the district court is affirmed.                                                      ________                                         -4-
