
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1642                                     LAURA HICKEY,                                Plaintiff, Appellant,                                          v.                          WELLESLEY PUBLIC SCHOOLS, ET AL.,                                Defendants, Appellees.                                 ____________________        No. 94-1965                                    LAURA HICKEY,                                Plaintiff, Appellant,                                          v.                         WELLESLEY SCHOOL COMMITTEE, ET AL.,                                Defendants, Appellees.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                                Boudin, Circuit Judge.                                        _____________                                 ____________________            Laura Hickey on briefs pro se.            ____________            Albert S. Robinson on briefs for appellees.            __________________                                 ____________________                                   January 25, 1995                                 ____________________                 Per Curiam.   We  have carefully  reviewed the  parties'                 __________            briefs  and  the record  on  appeal.   Insofar  as  appellant            contends  that the district court was without jurisdiction to            issue its  order of dismissal,  dated April 29, 1994,  she is            incorrect.   Mandate in  appellant's prior  appeal issued  on            February 18,  1994.  "The  effect of the mandate  is to bring            the proceedings  in a case on appeal in  our Court to a close            and  to remove  it  from  the  jurisdiction  of  this  Court,            returning it to the forum whence it came."  Ostrer  v. United                                                        ______     ______            States, 584  F.2d  594, 598  (2d  Cir. 1978);  accord  United            ______                                         ______  ______            States v. Rush, 738 F.2d 497, 509 (1st Cir. 1984) ("it is the            ______    ____            date on which the mandate is issued which determines when the            district   court   reacquires    jurisdiction   for   further            proceedings"), cert. denied, 470 U.S. 1004 (1985).  Moreover,                           ____________            the mere  filing of  a petition  for certiorari without  also            timely asking for,  and obtaining, a stay of  mandate did not            prevent the district court from acting as it did.  "[N]either            the right to petition for a writ of certiorari nor the actual            filing of such  a petition stays enforcement of  the judgment            sought to  be reviewed by  certiorari."  2  Fed Proc, L  Ed              3:131 (1994).                 Secondly, we do not find  that the district court abused            its discretion in ordering dismissal  in this case.  See Link                                                                 ___ ____            v. Wabash R.R.,  370 U.S. 626, 633 (1962)  (reciting that the               ___________            proper standard is abuse of  discretion).  In Cosme Nieves v.                                                          ____________                                         -2-            Deshler, 826 F.2d 1,  2 (1st Cir.  1987), we said that  "[i]n            _______            all the cases in which we have upheld a dismissal for want of            prosecution,  we  have  found   either  extremely  protracted                                            ______            inaction (measured  in years), disobedience  of court orders,            ignorance  of warnings,  contumacious conduct, or  some other                                                           __            aggravating  circumstance."  Id.   (Emphasis added.)  We have                                         ___            defined   "other   aggravating  circumstances"   to   include            "prejudice  to  the  defendant,  glaring  weaknesses  in  the            plaintiff's  case,  and   the  wasteful   expenditure  of   a            significant amount  of the  district court's  time."   Enlace                                                                   ______            Mercantil Internacional v.  Senior Indus., 848 F.2d  315, 317            _______________________     _____________            (1st  Cir. 1988) (footnotes omitted).  Appellant's litigation            efforts in this matter are directed at dragging out claims of            dubious merit  beyond any reasonable expectation  of success.            We recite but a brief overview.                 In 1988, the  state Department  of Education  determined            that the defendants had fully complied with federal and state            law.  Also in 1988, the district court, in denying successive            requests   for   preliminary   injunctive  relief,   made   a            determination that appellant's  lawsuit was not likely  to be            successful.  After filing appeals from each of the denials of            preliminary  injunctive relief,  appellant's mother,  who was            litigating  on her then-minor daughter's behalf, moved for an            expedited trial, but  then three times  failed to attend  her            scheduled  deposition - in  each instance, giving  very short                                         -3-            notice  that  she  would  not  attend -  and  on  the  fourth            scheduled date, abruptly terminated the deposition.  Two days            before the scheduled fifth date, she informed the court  that            she and appellant had moved to Texas and asked to voluntarily            dismiss the lawsuit without prejudice.                 Three  years  later,  appellant  sought  to  reinstitute            essentially   the  same   lawsuit.     Presumably,  appellant            graduated in June  1989; yet there is no  explanation for the            2+   years  of  inactivity  from  then  until  the  attempted            reinstitution in September 1991.  Although the district court            found that full payment of  the defendants' fees and expenses            ($6,598.50) in defending the aborted suit would be justified,            in recognition of the appellant's indigency, it required only            that  appellant  deposit  $1,000 into  the  Court's  Registry            pending  the  outcome  of  the  new lawsuit  and  to  file  a            clarification of the  basis for her new action.   We affirmed            that order as a  justifiable balance of appellant's right  of            access to the  court process with  her responsibility to  use            that process appropriately.   After granting an  extension of            time in which to file  it, we denied appellant's petition for            rehearing.  As noted, mandate issued on February 18, 1994.                 The  district court  warned  appellant,  by order  dated            March 9, 1994,  that her suit would be  dismissed for lack of            prosecution unless, by  April 15, she deposited the $1,000 in            the   Court  Registry   and   filed  the   required   written                                         -4-            clarification.  Appellant's response was tepid, at best.  She            informed the  district court  of her  "interest" in  filing a            motion  to recall  mandate in  the court  of appeals  and her            "intention"  to timely seek certiorari in the Supreme Court.1            She  did not  seek a  stay  pending her  attempts at  further            review,  offer to  pay  even  part of  the  $1,000, file  the            written clarification or  suggest why even that  filing would            be burdensome.  Her response is best viewed for what it truly            represents  - more delaying tactics, unlikely to succeed, and            not warranting the withholding of dismissal.                 The  "glaring weaknesses  in  the plaintiff's  case" are            self-evident  even from this summary recitation of the course            of this  litigation.   In 1988, the  state Bureau  of Special            Education Appeals  determined that  the defendants  had fully            complied  with state  and federal  law.   Also  in 1988,  the            district  court, in  denying  preliminary injunctive  relief,            concluded  that she  was unlikely  to prevail on  the merits.            Nothing  since  that time  suggests the  contrary.   And, the            defendants  have  had  to  endure  appellant's  "dodging  and            weaving" tactics of litigation -- which consisted of pressing            for injunctive relief  and expedited trial  in 1988, only  to            come to  a screeching halt  when prospects of  success looked            dim, and  then springing to  life again three years  later in                                            ____________________            1.  Certiorari  was,  in  fact, denied  on  October  3, 1994.            Hickey v. Wellesley Sch. Comm., 115 S. Ct. 112 (1994).            ______    ____________________                                         -5-            1991, resulting in  another three years of litigation.   This            case has  consumed more amount  of the district  court's time            than it warrants.                 Finally, appellant  has appealed from  an order  denying            her motion "to correct the record and request  for accounting            from  court  of  all  handwritten  notes,  books,  documents,            records,   papers,  tapes,  etc.  of  the  Court's  Order  of            Dismissal dated April 29,  1994."  Appellant claims that  she            did not  receive a copy of the  dismissal order until May 26,            and  so, she  further claims,  dismissal  must have  actually            occurred on May 23 or 24, but was back-dated to April 29.  We            have grave doubts about each of these allegations.  Appellant            also has failed to  support her claim that she is entitled to            "handwritten notes" and the like.  In any event, the district            court gave appellant an extension of time to file a notice of            appeal from the order of  dismissal.  We have considered that            appeal and it is meritless.                 The order of dismissal and the  order denying the motion            to correct the record and for an accounting are affirmed.                                                            _________                                         -6-
