

April 11, 1995
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 94-1480 

                        DENNIS SIROIS,

                    Plaintiff, Appellant,

                              v.

                 MAINE STATE PRISON, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

         [Hon. Morton A. Brody, U.S. District Judge]                                                               

                                         

                            Before

                    Cyr, Boudin and Stahl,
                       Circuit Judges.                                                 

                                         

Dennis Sirois on brief pro se.                         

                                         

                                         

          Per Curiam.   Dennis Sirois  appeals the  dismissal                                

pursuant  to  28 U.S.C.    1915(d)  of  his pro  se complaint                                                               

alleging constitutionally  deficient medical treatment.   His

suit under 42 U.S.C.   1983 -- against the prison entity, its

warden and deputy warden, a medical administrator, a John Doe

nurse,  and the entire medical staff at the prison -- alleged

various instances  of failure  to provide  medical treatment.

Specifically, Sirois claimed  that the defendants refused  to

treat  an   abscess  that  resulted  from   an  injection  of

medication  administered on  March  2, 1994.   The  complaint

sought declaratory and injunctive relief, as well as monetary

damages.  The magistrate-judge recommended that the complaint

be dismissed as frivolous.  Sirois objected, but the district

court  adopted the  recommended  decision  and dismissed  the

complaint.

          Although  the  district  court  may  have erred  in

dismissing the  complaint as frivolous under    1915(d) since

Sirois'  claims  are  at   least  arguable,  see  Neitzke  v.                                                                     

Williams, 490 U.S. 319,  327-28 (1989), we nonetheless affirm                    

on  the basis that  the error was  harmless.   See J.E. Riley                                                                         

Inv.  Co. v.  Commissioner, 311  U.S. 55,  59 (1940);  Doe v.                                                                      

Anrig, 728 F.2d 30, 32 (1st Cir. 1984).                 

          To state a cognizable Eighth Amendment  claim based

on  medical mistreatment,  "a  prisoner must  allege acts  or

omissions   sufficiently   harmful  to   evidence  deliberate

indifference to  serious medical needs."   Estelle v. Gamble,                                                                        

429 U.S.  97, 106 (1976).  Our review of the record satisfies

us that  Sirois has not  alleged medical needs  of sufficient

seriousness to warrant Eighth  Amendment scrutiny.  Hudson v.                                                                      

McMillian,  112  S. Ct.  995,  1000  (1992).   The  condition                     

suffered  as a result of  the injection appears  to have been

relatively minor.   There  are no  allegations of fever,  and

Sirois  was vague about the severity and duration of pain, as

well  as  the  number of  treatment  requests  made.   It  is

acknowledged that the condition  was treated after the filing

of this  complaint, seemingly to Sirois'  satisfaction.  Even

treating  his  objections  to  the  magistrate's  recommended

decision as  amendments, we are persuaded  that the complaint

failed to state a cognizable Eighth Amendment claim.

          Affirmed.                      Affirmed.                              

                             -3-

                UNITED STATES COURT OF APPEALS

                    FOR THE FIRST CIRCUIT

                                           

No. 94-2172

                    CMM CABLE REP., INC.,

            d/b/a CREATIVE MEDIA MANAGEMENT, INC.,

                    Plaintiff, Appellant,

                              v.

                OCEAN COAST PROPERTIES, INC.,

                    d/b/a WPOR-FM, ET AL.,

                    Defendants, Appellees.

                                           

                             -4-

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

         [Hon. D. Brock Hornby, U.S. District Judge]                                                               

                                           

                            Before

                    Selya, Circuit Judge,                                                    

                Bownes, Senior Circuit Judge,                                                        

                  and Stahl, Circuit Judge.                                                      

                                           

               Anne S.  Mason, with whom Mason  &amp; Assocs., P.                                                                         

A.,  John H. Rich III, William Sheils, and Perkins, Thompson,                                                                         

Hinckley &amp; Keddy were on brief, for appellant.                            

               James G. Goggin,  with whom Roy S.  McCandless                                                                         

and Verrill &amp; Dana were on brief, for appellees.                              

                                           

                             -5-

                        March 6, 1995

                                           

                             -6-

          SELYA, Circuit Judge.   CMM Cable Rep., Inc. (CMM),                      SELYA, Circuit Judge.                                          

plaintiff below, appeals from  the district court's denial of

preliminary  injunctive  relief  associated  with  claims  of

copyright  infringement,  trademark infringement,  and unfair

competition.1  We dismiss the appeal as moot.

                              I                                          I

          Because this case turns  principally on its present

procedural posture, we do no more than skim the facts.

          CMM  does  business under  the  name  and style  of

"Creative   Media  Management."     It   devises  promotional

strategies  to  assist   radio  stations  in   acquiring  and

retaining  listeners.     CMM   claims  to  have   created  a

promotional contest called "PAYROLL PAYOFF ."  In due season,

it  trademarked the  name and  copyrighted various  materials

designed  for  use in  executing  promotional  campaigns that

featured  the contest.  The  mechanics of PAYROLL PAYOFF  are

not relevant to the mootness issue, and rehearsing them would

serve no useful purpose.2

                                                    

1.  In point of fact,  the district court did not  deny CMM's
motion  for preliminary  injunction outright,  but granted  a
small measure of relief.   On appeal, CMM complains  that the
court  gave it considerably  less than  its due,  drawing the
injunction in much too crabbed a fashion.

2.  We refer  readers who thirst  for greater knowledge  to a
more   detailed  account  of   the  PAYROLL  PAYOFF   concept
contained   in   CMM   Cable    Rep.,   Inc.   v.   Keymarket                                                                         
Communications,  Inc., 870  F.  Supp. 631,  633-34 (M.D.  Pa.                                 
1994).

                             -7-                                          7

          CMM  unsuccessfully  pitched  the  PAYROLL  PAYOFF 

promotion  to radio station  WMGX, its regular  client in the

Portland, Maine, market.  Subsequently, a competing  station,

WPOR,3 tried to  acquire the right  to run the contest.   CMM

refused to  deal out  of loyalty  to WMGX.    WPOR then  took

matters into its  own hands and "created"  (or so it says)  a

contest-type  promotion,  reminiscent  in  some  respects  of

PAYROLL PAYOFF , called  "PAYDAY."   WPOR began  broadcasting

its PAYDAY contest in the fall of 1994.

                              II                                          II

          Unconsoled by  the bromide  that  imitation is  the

sincerest form of  flattery, CMM brought suit  in the federal

district   court  charging,  among  other  things,  copyright

infringement, trademark infringement, and unfair competition.

CMM's complaint prayed,  inter alia,  for damages,  equitable                                               

remedies, and attorneys'  fees.  In  addition, CMM moved  for

both  temporary and  preliminary  injunctive relief  to  halt

WPOR's use of the PAYDAY contest pendente lite.                                                          

          The  district court  refused to  issue  a temporary

restraining order.   Instead, it held  an evidentiary hearing

and,  on  November 4,  1994,  granted  a limited  preliminary

                                                    

3.  Defendant  Ocean  Coast  Properties, Inc.  operates  WPOR
(sometimes referred to by  plaintiff as WPOR-FM).  Defendants
Robert Gold,  Phillip Corper, and William  Therriault are all
interested  in the  station's  operation.   For  simplicity's
sake,  we refer to the defendants, collectively, as "WPOR" or
"appellees."

                             -8-                                          8

injunction prohibiting further production and distribution of

the  brochures that  WPOR had  prepared  to help  promote its

PAYDAY  scheme.4   The  court  refused  to enjoin  WPOR  from

proceeding with the contest  proper, however, ruling that CMM

had shown scant prospects of success on its principal claims.

This appeal ensued.

          While  the appellate  process  was  underway,  WPOR

moved  to  dismiss the  appeal on  grounds  of mootness.   In

support,  it averred  that  the PAYDAY  contest  had run  its

course, and was no  longer being broadcast.  CMM  objected to

the proposed  dismissal.   Though admitting that  the contest

was  off  the air,  CMM asserted  that  its appeal  could not

fairly be characterized  as moot.   On February  9, 1995,  we

heard arguments  spanning both  the question of  mootness and

the merits of the appeal.

                             III                                         III

          A   federal  appellate  court   may  only  exercise

jurisdiction  over actual  "cases" or "controversies."   U.S.

Const. art. III,    2,  cl. 1.   The instant appeal  provides

this court with no live controversy to resolve, and, thus, we

lack appellate jurisdiction.  We explain briefly.

          This  is an  interlocutory appeal.   It  is brought

strictly and solely to test whether the district court abused

                                                    

4.  The court  determined that CMM would  probably succeed in
showing that the brochures infringed existing copyrights. 

                             -9-                                          9

its  discretion  in withholding  certain  provisional relief.

The   relief  sought  is  in  the  nature  of  a  preliminary

injunction.   The purpose of  a preliminary injunction  is to

preserve the status quo, freezing an existing situation so as

to  permit the  trial court,  upon full  adjudication of  the

case's merits,  more effectively to remedy  discerned wrongs.

See Chalk v.  United States  Dist. Court, 840  F.2d 701,  704                                                    

(9th  Cir. 1988); American  Hosp. Ass'n  v. Harris,  625 F.2d                                                              

1328, 1330 (7th Cir.  1980).  The court's interim  injunctive

decree attempts to prevent  further injury by maintaining the

status quo,  cf. Narragansett  Indian Tribe v.  Guilbert, 934                                                                    

F.2d  4,  5  (1st  Cir. 1991)  (listing  the  "potential  for

irreparable  injury"  as  a  standard  prerequisite  for  the

granting  of a  preliminary injunction),  thus enhancing  the

court's ability,  if it ultimately  finds for the  movant, to

minimize the  harmful  effects of  the  defendant's  wrongful

conduct.

          The appealability of orders  "granting, continuing,

modifying, refusing or  dissolving" preliminary  injunctions,

28 U.S.C.   1292(a)(1), fits hand-in-glove with this purpose.

Indeed,  the impetus  behind the  statutory exception  to the

"final judgment"  rule that allows an immediate  appeal of an

order  refusing  a  preliminary  injunction  is   to  prevent

irreparable harm to a  litigant who, otherwise, might triumph

at trial but be left holding an empty bag.  See United States                                                                         

                             -10-                                          10

v.  Cities  Serv. Co.,  410 F.2d  662,  664 (1st  Cir. 1969).                                 

Pyrrhic victories,  after all,  are often cold  gruel in  the

eyes  of prevailing  parties  and do  little  to burnish  the

public's perception  of the  judicial  system.   We think  it

follows that,  when this  harm-preventing function cannot  be

effectuated by the successful prosecution of an interlocutory

appeal from the denial of interim injunctive relief, then the

viability of the appeal itself is called into question.  See,                                                                        

e.g., Bank of  N.Y. Co.  v. Northeast Bancorp,  Inc., 9  F.3d                                                                

1065, 1067 (2d Cir. 1993).

          Such a configuration exists here.  Because WPOR has

finished  airing its  PAYDAY  contest, this  appeal seeks  to

enjoin  an event that has already fully occurred.  No mandate

that we might  issue can turn back the pages  of the calendar

and either  stop the  commission of the  allegedly infringing

act or  fully palliate  its effects.   Though federal  courts

possess great authority, they lack the power, once a bell has

been  rung,  to  unring   it.    In  short,  no   justiciable

controversy exists  because this  appeal can no  longer serve

the intended  harm-preventing function, or, put  another way,

this court, within the  isthmian confines of an interlocutory

appeal  from an  order refusing to  restrain a  now completed

act, has no effective relief to offer.

          Our analysis  finds ample support in  the case law.

It has been common ground throughout the last century that an

                             -11-                                          11

appeal, although live  when taken,  may be  rendered moot  by

subsequent developments.   See Mills v. Green, 159  U.S. 651,                                                         

653 (1895).  More specifically, "an appeal from the denial of

a motion  for a preliminary injunction is  rendered moot when

the  act  sought to  be enjoined  has  occurred."   McLane v.                                                                      

Mercedes-Benz of North Am.,  Inc., 3 F.3d 522, 524  (1st Cir.                                             

1993); accord Bank  of N.Y.,  9 F.3d at  1067; Oakville  Dev.                                                                         

Corp. v. FDIC, 986 F.2d  611, 613 (1st Cir. 1993).   Based on                         

these  precedents, it appears that CMM's appeal is moot.  See                                                                         

Bank  of N.Y., 9 F.3d at 1067 (explaining that an appeal from                         

the  denial of a motion for preliminary injunction is moot if

the  appellate  court can  no  longer  preserve, or  feasibly

restore, the status quo); Oakville, 986 F.2d at 613  (holding                                              

that a  case is moot upon the inability of a court to provide

effective relief in respect to the claim before it).

          We emphasize that appellant's suit  remains pending

in the district court.   Unlike this appeal, the  suit itself

is not moot  because the relief  requested is attainable;  if

appellant ultimately  prevails, the district court  can award

money damages,  attorneys' fees, and other  effective relief.

A suit that seeks  damages for harm caused by  past practices

is  not rendered  moot  by the  cessation  of the  challenged

conduct.   See Curtis Indus., Inc. v. Livingston, 30 F.3d 96,                                                            

97-98 (8th  Cir. 1994) (explaining that  a judgment declaring

                             -12-                                          12

an appeal of  a ruling  anent a  preliminary injunction  moot

does  not preclude the district court from proceeding to hear

and determine a  claim for  damages arising out  of the  same

conduct); Trane Co.  v. O'Connor  Sec., 718 F.2d  26, 27  (2d                                                  

Cir.  1983)  (dismissing  appeal from  denial  of preliminary

injunction as  moot "[e]ven though  issues may  remain for  a

trial on the merits").

                              IV                                          IV

          Appellant explores  two  avenues in  its effort  to

detour  around the  barrier of  nonjusticiability.   Both are

blind alleys.

          First, appellant asseverates that  the harm it  has

experienced may simply be in a state of temporary  remission.

It  posits that  WPOR,  having run  the allegedly  infringing

contest once, may  do so again,  and, if it chooses  its time

frame skillfully,  may  continue to  dodge appellate  review.

The asseveration cannot withstand scrutiny.

          To be sure, the  likely recurrence or repetition of

the  wrong  sought  to  be  enjoined,  when  coupled  with  a

demonstrated  tendency to elude review, forms the basis for a

recognized exception to the application of the mootness rule.

See  Oakville,  986  F.2d  at  615;  see  also  Southern Pac.                                                                         

Terminal Co. v. ICC, 219 U.S. 498, 515 (1911) (holding that a                               

case  is not  moot  if  the  alleged  wrong  is  "capable  of

repetition, yet  evading review").    But, here,  appellant's

                             -13-                                          13

attempt to invoke this exception lacks at least one necessary

ingredient.5   It  is not  enough  that a  consummated  event

could, theoretically, happen again.   Rather, for an event to

be "capable of repetition" in the requisite sense, there must

be  a reasonable  expectation  of reoccurrence.   See  United                                                                         

States v. Peters, 754  F.2d 753, 758 (7th Cir.  1985); Trane,                                                                        

718 F.2d at 27.

          This is not such  a case.  When questioned  at oral

argument,  appellees' counsel stated  flatly that  WPOR would

refrain  from revivifying  its contest  until after  the main

case    which,  as we  have said,  is awaiting  trial in  the

district  court,  see supra  p.7    has  been concluded.   We                                       

consider an express representation by an officer of the court

to be a solemn undertaking, binding on the client, cf., e.g.,                                                                        

United States v.  Coady, 809  F.2d 119, 121  (1st Cir.  1987)                                   

(refusing to  countenance  a defendant's  attempt to  retreat

from his  attorney's express representation),  and we  expect

that   it   will  be   honored.      Given  the   stand-still

representation,  the potential for reoccurrence or repetition

of the allegedly wrongful acts is far too exiguous to support

continued appellate jurisdiction.

          Appellant's second attempted detour need not detain

us.   CMM contends that  the possibility of  effective relief

                                                    

5.  We take  no view  of whether appellant's  claim satisfies
the "evading review" prong of the exception.

                             -14-                                          14

exists  notwithstanding  the end  of  WPOR's  promotion.   It

anchors this contention  on the idea that the  district court

could  still  enjoin  WPOR  pendente lite  from  reaping  the                                                     

benefits   of  the   increased  listener  database   that  it

presumably acquired  through its  exploitation of the  PAYDAY

contest.   There are several problems with this argument.  We

need  not go beyond  its two most  noticeable flaws.   In the

first place, CMM never  requested this specific relief during

the preliminary injunction proceedings in the district court.

Consequently, its argument founders.   A party who   neglects

to  ask the trial court  for relief that  it might reasonably

have thought would be available  is not entitled to importune

the court of  appeals to  grant that relief.   See  Dartmouth                                                                         

Review v. Dartmouth Coll.,  889 F.2d 13, 22 (1st  Cir. 1989);                                     

Beaulieu  v. United States IRS, 865 F.2d 1351, 1352 (1st Cir.                                          

1989); see generally Clauson v. Smith, 823 F.2d 660, 666 (1st                                                 

Cir.  1987)  (holding  that  theories not  developed  in  the

district court cannot be raised for the first time on appeal)

(collecting cases).

          In all  events, even  were the point  preserved, it

would be unavailing.   If CMM prevails on the  merits, WPOR's

increase in listenership conceivably  may represent a form of

unjust  enrichment,  calling for  damages  in  the nature  of

disgorgement.   But an entitlement to  money damages, without

more, rarely  constitutes an  adequate  basis for  injunctive

                             -15-                                          15

relief.    In  particular,  the  issuance  of  a  preliminary

injunction  requires a  showing  of irreparable  harm to  the                                                                         

movant rather  than to  one or  more third  parties.   In the                  

circumstances  of  this  case,  WPOR's use  of  a  wrongfully

acquired  database  would  not  meet this  benchmark.    Such

conduct harms only other  radio stations   WPOR's competitors

  not CMM itself.

                              V                                          V

          We need go no  further.  Because the relief  sought

below     a more  sweeping  preliminary  injunction    cannot

feasibly be granted under  the changed circumstances that now

obtain, this  appeal no  longer presents a  live controversy.

The  appeal   is  moot  and,  therefore,   this  court  lacks

jurisdiction to  reach the merits.6   Appellate tribunals are

not,  and should not be, in the surreal business of rendering

advisory opinions.

Appeal dismissed.  Costs in favor of appellees.            Appeal dismissed.  Costs in favor of appellees.                                                          

                                                    

6.  We express no opinion  either on the merits of  the order
appealed from or on the issues that remain to be tried in the
lower court.

                             -16-                                          16
