
USCA1 Opinion

	




       [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]                 United States Court of Appeals                     For the First CircuitNo. 99-1039                         MICHAEL ELBERY,                      Plaintiff, Appellant,                                v.       BRADFORD LOUISON, ROBERT BREEN, JAMES HURLEY, ROBERT  MCGUINLEY, JAMES V. SAMPSON, CHESTER GUS JOHNSON, AND TOWN OF                            SHREWSBURY,                      Defendants, Appellees.                       ____________________No. 99-1319                         MICHAEL ELBERY,                      Plaintiff, Appellant,                                v.                          JAMES HESTER,                       Defendant, Appellee.                      _____________________      MICHAEL SALLOUM, TOWN OF SHREWSBURY, ROBERT MCGUINLEY,                  DANIEL MORGADO, WAYNE SAMPSON,                            Appellees.          APPEALS FROM THE UNITED STATES DISTRICT COURT                FOR THE DISTRICT OF MASSACHUSETTS            [Hon. Patti B. Saris, U.S. District Judge]                              Before                     Torruella, Chief Judge,               Selya and Boudin, Circuit Judges.                                                                                                                                     Michael Elbery on brief pro se.     Elizabeth M. Fahey and Pierce, Davis, Fahey & Perritano, LLP on brief for appellees, James Hurley, Robert McGinley, James V.Sampson, Chester Gus Johnson and Town of Shrewsbury.     Bradford N. Louison and Merrick, Louison & Costello on brieffor appellee James Hester.December 17,1999                                                                                Per Curiam.  In these consolidated cases, appellant  Michael Elbery appeals from two orders entered by the district  court in two separate, but related, actions.  These orders  forbid appellant from filing any complaints against the Town of  Shrewsbury Police Department and certain individuals without  first obtaining approval from the district court.  After  briefly setting out the facts and the law, we address each  order separately.                          I.  Background            Appellant has filed various lawsuits, including the  two below, concerning the events surrounding, and following,  his arrests by the Shrewsbury, Massachusetts police on two  separate occasions.  The first arrest arose out of a fight  outside a bar in Worcester in 1992.  In connection with his  prosecution for this fight, appellant was arrested and charged  with intimidating a witness (the bartender who had seen the  fight).  According to appellant, he was tried in a state  district court and found guilty of this charge, but on appeal  to the superior court, the charge was dismissed.            The second arrest took place in 1994 after a fire at  a warehouse storage facility in which appellant rented a  storage unit.  According to appellant, he kept his collection  of guns, for which he had a license, in this unit.  Shrewsbury  police arrested appellant on five charges of possession of  firearms and one charge of carrying a firearm.  Appellant  states that the district attorney did not appear at the trial  and that he was acquitted of the charges.            Based on these arrests, appellant filed two actions  listing claims for malicious prosecution and various  constitutional violations against the Shrewsbury police and  others.  These actions are entitled Elbery v. Hester and Elbery  v. Sklut and are pending in the federal district court.   Appellant also commenced an action against Linda Schlener, the  individual who had filed the complaint with the Shrewsbury  police concerning appellant's intimidation of the witness to  the bar fight.  This case remains in state court and is  entitled Elbery v. Schlener (Schlener I).            Not content with having three pending actions,  appellant filed three more suits in the federal district court  concerning events that had transpired during the arrests and  also events which had occurred in the pending cases.  In Elbery  v. Schlener (Schlener II), appellant sued, among others, Linda  Schlener, Schlener's lawyer in Schlener I, and the state judge  in Schlener I.  Appellant alleged in this case that the  defendants had retaliated against him for filing his original  actions against Schlener and Hester.  In particular, appellant  stated that Schlener had asserted counterclaims in the state  case as an act of retaliation.            In the second case, Elbery v. Louison, appellant  filed a complaint which named as a defendant attorney Bradford  Louison.  Louison was then representing the Town of Shrewsbury  and its police officers.  The other defendants were Shrewsbury  police officers.  Appellant alleged that the police had started  the fire at the storage warehouse so that they could frame him  on the gun charges and stop him from filing his federal  lawsuits.            Finally, in Elbery v. Klug, the third lawsuit,  appellant again listed attorney Louison as a defendant.  He  also sued various Shrewsbury police officers, the United Parcel  Service, Day's Inn Motel, and a bartender at Day's Inn.  He  essentially claimed that these defendants had engaged in a  cover-up concerning what he perceived to be constitutional  violations in the defense of the Loiuson case.                         II.  The Law                It is well-established that "[f]ederal courts . . .  possess discretionary powers to regulate the conduct of abusive  litigants."  Cok v. Family Court of Rhode Island, 985 F.2d 32,  34 (1st Cir. 1993) (per curiam).  Thus, "in extreme  circumstances involving groundless encroachment upon the  limited time and resources of the court and other parties, an  injunction barring a party from filing and processing frivolous  and vexatious lawsuits may be appropriate."  Castro v. United  States, 775 F.2d 399, 408 (1st Cir. 1985) (per curiam).  Such  an injunction, however, must be "narrowly drawn to fit the  specific vice encountered."  Id. at 410.  The issuance of an  injunction aimed at preventing vexatious litigation is reviewed  for abuse of discretion.  Id. at 408.                  III.  The District Court Orders            A.  Appeal No. 99-1039            This appeal arises out of the Louison case, the first  action in which appellant sued attorney Louison concerning  Louison's representation of the Shrewsbury defendants in the  prior cases.  In their motion for an injunction, the defendants  alleged that after appellant's deposition was taken by  Elizabeth Fahey, the new attorney representing the Shrewsbury  defendants in Sklut and Louison, appellant called Fahey and  stated that he might sue Fahey and the court reporter present  at the deposition based on Fahey's alleged falsification of the  deposition transcript.  The defendants therefore requested that  appellant be required to seek leave of court before filing a  complaint against Fahey or the court reporter.            When no opposition was forthcoming, the district  court granted the motion by endorsing it as "allowed."  The  following entry also was made on the docket sheet:  "Endorsed  Order entered granting . . . motion to require plaintiff to  seek leave of court before plaintiff files new complaint."   Soon thereafter, appellant filed a belated opposition to the  motion, alleging that Fahey intended to deprive him of his  constitutional rights.            We think that the injunction entered by the district  court must be read as ordering that appellant seek approval  prior to filing a new complaint against Fahey or the court  reporter only, not that he must seek approval before filing any  new complaint.  As read, it is plain that appellant received  notice, via the defendants' motion, that the district court was  contemplating such an injunction.  Also as read, the injunction  is tailored to the specific circumstances facing the court and  was not entered just to curtail appellant's ability to initiate  litigation.            While appellant is correct that litigiousness alone  will not support an injunction, see Castro, supra, 775 F.2d at  408-09, we believe that appellant's particular affinity for  suing attorneys who represent defendants in the pending cases  amounts to behavior which is vexatious and harassing.  In  particular, appellant already has sued Louison and Schlener's  attorney in the state case.  We note that when such an attorney  is so sued, the attorney often will be required to cease  representing his or her client, with the result that the client  will be forced to find new counsel.  Given appellant's belief  that Fahey and the court reporter are part of the ongoing  conspiracy to violate his constitutional rights, an injunction  requiring appellant to secure approval before filing a  complaint against either of them was not an abuse of  discretion.            B.  Appeal No. 99-1319            This appeal arises out of Elbery v. Hester in which  appellant sued James Hester, the police officer who had  arrested him on the charge of intimidating a witness.  In this  case, Hester moved for an order requiring appellant to seek  court approval before filing any more lawsuits against Hester,  other members of the Shrewsbury Police Department, or Louison  (the attorney then representing Hester).  The district court  granted the motion, pointing out that appellant already had  filed five pro se lawsuits against the Shrewsbury Police  Department and that two of the cases named Louison as a  defendant.  The court thus ordered appellant "not to file an[y]  additional lawsuits against the Shrewsbury Police Department,  its members, Bradford Louison, or any of the attorneys who have  filed an appearance in these suits without obtaining advance  court approval."  The court added that "[d]efense counsel may  file a motion to deem any such case as 'related.'"            Appellant initially argues that the above order does  not set out sufficient record support for the injunction.   Although the court did not list by name, or discuss, all of the  actions appellant had filed, this is not fatal.  Hester's  motion adequately reviewed the pending cases and pointed out  how they were connected.  Further, this court may take judicial  notice of "proceedings in other courts, both within and outside  of the federal judicial system, if the proceedings have a  direct relation to matters at issue."  Green v. Warden, United  States Penitentiary, 699 F.2d 364, 369 (7th Cir. 1983).  There  is no question that the pending lawsuits listed above are  related to the injunctions entered by the district court.            Turning to the merits, appellant primarily contends  that the injunction was an abuse of discretion because the  cases he has filed are not vexatious or harassing.  Rather, he  states, the cases are meritorious and he is merely exercising  his right of free access to the courts.  We disagree.            At the time the motion for an injunction was filed,  appellant already had initiated the two suits challenging his  arrests for intimidating a witness and for firearms violations  (Hester and Sklut).  Had appellant stopped here, this would be  a different case.  However, as described above, appellant  continued to file more actions concerning what he perceived to  be conspiracies related to, and arising out of, the two  original suits.  As defendant pointed out in the motion for an  injunction, since the parties and underlying events were  connected, the proper course was for appellant to have asked  the district court for leave to amend the already pending cases  so that he could add new claims and/or defendants.  In most  instances, though, this would have required prior court  permission.            The injunction entered by the district court  essentially achieves this result by ordering appellant to seek  approval before filing new actions against the Shrewsbury  Police Department, its members, or any of the attorneys  representing these parties.  Furthermore, in light of the  purpose of the order and the language added at the end  referring to relatedness, we read the injunction as limited to  new cases connected to the ones currently pending.  So read,  the injunction is "narrowly drawn to fit the specific vice  encountered," see Castro, supra, 775 F.2d at 410, instead of  being overbroad as it arguably would have been if it had  prevented appellant from filing any new cases against these  defendants.            Finally, that appellant's behavior is vexatious and  harassing is obvious.  That is, by filing new actions,  appellant forces the defendants to answer each new complaint  and to defend each new suit.  If appellant must obtain  permission prior to filing a new case, as he would if he sought  to amend the existing complaints, the defendants will be spared  this additional effort and the associated expense.  As a  result, the district court did not abuse its discretion in  entering the above injunction.            The judgments of the district court are affirmed.
