
USCA1 Opinion

	




          February 9, 1993                            UNITED STATES COURT OF APPEALS                                For The First Circuit                                 ____________________        No. 92-1600                                     GLADYS L. COK,                                Plaintiff, Appellant,                                          v.                        FAMILY COURT OF RHODE ISLAND, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              Torruella, Circuit Judge.                                         _____________                                 ____________________            Gladys L. Cok on brief pro se.            _____________            James  E.  O'Neil,  Attorney  General,  and  Richard  B.  Woolley,            _________________                            ____________________        Assistant Attorney General, on brief for appellees.                                 ____________________                                   February 9, 1993                                 ____________________                      Per  Curiam.    Pro  se   plaintiff-appellant  Cok                      ___________     ___  __             appeals from an order remanding to the state court a matter             which Cok had  attempted to remove, and from  an injunction             preventing her from removing  any other matters and placing             restrictions   on   future  filings.      We  are   without             jurisdiction  to review  the remand  order, and  vacate the             injunction.                                  REMOVAL AND REMAND                                  REMOVAL AND REMAND                                  __________________                      Cok  was  divorced   in  Rhode  Island  in   1982.             Protracted and acrimonious proceedings in the  Rhode Island             Family  Court  have  continued to  this  day  and form  the             backdrop of this appeal.  According to Cok, the divorce and             its  fallout   have  produced  over  600   orders.    Cok's             contentions, while characterized in terms of preemption and             federalism,  revolve,  at  bottom,  around  her  continuing             objections  to family court orders doling  out her money to             various persons whom she considers unworthy and corrupt.                      This is  at least  Cok's second attempt  to remove             matters  devolving  out  of  her  divorce  to  the  federal             district court.  In 1984, the Supreme Court of Rhode Island             affirmed the divorce decree including various fees awarded.             After the  court-appointed guardian  ad litem had  moved in             the Family Court  of Rhode Island to collect a  fee for his             services, and the  conservator, on order of  the court, had             attempted  to sell  certain  properties owned  by Cok,  Cok             undertook  to remove the case to the District Court for the             District of  Rhode Island.   Finding the  case unremovable,             the district court remanded.   We summarily dismissed Cok's             appeal from that order  under the authority of 28  U.S.C.               1447(d).  Cok v. Cosentino, No. 85-1058, slip op. (1st Cir.                       ___    _________             May 1, 1985).   Thereafter, in Cok v. Cosentino, 876 F.2d 1                                            ___    _________             (1st  Cir. 1989), we affirmed the  dismissal of Cok's civil             rights and RICO complaints against the same court-appointed             guardian  ad  litem  and  conservator  of  marital  assets.             Subsequently, Judge  Suttell of  the Family Court  of Rhode             Island ordered the payment  of $160,000 to the conservator,             that amount to be  disbursed from a $200,000 fund  that Cok             was "forced" to deposit with the family court.                      In September 1991, apparently in response to Judge             Suttell's order, Cok attempted this  removal.  The State of             Rhode Island  and its  family court appeared  specially and             moved for summary dismissal or, alternatively,  for remand.             The matter was referred to a magistrate-judge, who, after a             hearing,  determined  that  the  remand  motion  should  be             granted.     In  concluding   that  the  matter   had  been             improvidently removed, the magistrate observed that Cok, in             essence,  sought appellate  review of  a matter  decided by             Judge Suttell, and had "misconstrued the purpose and proper             use  of  the  removal statute,  28  U.S.C.     1446."   The             magistrate also found that Cok was attempting to litigate a             different  set of  claims  than those  litigated in  family                                         -3-             court and that these new claims could not be  brought via a             removal  petition.   The district  court upheld  the remand             order and Cok has appealed.1                      This court is  altogether without jurisdiction  to             review the subject  of this appeal: a  district court order             remanding plaintiff's  case to a Rhode  Island state court.             We  so held on very  similar facts in Unauthorized Practice                                                   _____________________             of  Law Committee v. Gordon,  979 F.2d 11  (1st Cir. 1992).             _________________    ______             In Unauthorized  Practice,  involving, as  here,  a  remand                ______________________             order  issued by  a  magistrate-judge and  affirmed by  the             district court, we determined that such an order was immune             from  appellate review under 28  U.S.C.   1447(d).   Id. at                                                                  ___             13.  The same result applies here.                      Unlike the plaintiff in Unauthorized Practice, Cok                                              _____________________             filed, within the ten  days normally reserved for objecting             to a  magistrate's report  and recommendation, a  motion to             reconsider  the order granting  the motion to  remand.  The             district court held a hearing on the motion, and "affirmed"             the magistrate's remand order.   Nonetheless, as  discussed             in Unauthorized Practice, id. at 13-14, despite   1447(d)'s                _____________________  ___             language precluding  review of remand orders  "on appeal or             otherwise" (emphasis added), whether the district court was             _________                                            ____________________            1.  At the  hearing before  the district court  to reconsider            the  remand order, Cok withdrew her motion for recusal of the            district judge, and it  was not acted upon.   Although raised            on appeal, that issue has been waived.                                         -4-             reviewing a final  order of  remand (as appears  to be  the             case),  or whether it construed the magistrate's order as a             report and recommendation and Cok's motion to reconsider as             objections thereto, "  1447(d)'s prohibition on review of a             remand order dooms [the] appeal here."  Id. at 14.                                                     ___                                    THE INJUNCTION                                    THE INJUNCTION                                    ______________                      At  the hearing  on the  motion to  reconsider the             remand order, the district  court, sua sponte, enjoined Cok                                                ___ ______             from  attempting the pro se removal of any matters from the                                  ___ __             family court, or from filing any pro se actions in district                                              ___ __             court,  without the prior approval of a judge of the court,             and entered an order to that effect.  It states:                           Plaintiff  is  hereby enjoined  from                      removing any  matters to this  Court from                      the  Rhode Island  Family Court,  pro se,                      and  is also enjoined from commencing any                      actions  in this  Court, pro  se, without                      prior approval of a Judge of this Court.             On appeal  from this  injunctive order, Cok  challenges the             propriety of such an injunction, complaining of the absence             of supporting findings by the district court.2                      Federal   courts  plainly   possess  discretionary             powers  to  regulate  the  conduct  of  abusive  litigants.                                            ____________________            2.  In agreement with other circuits that have considered the            question,  we  are satisfied  that  we  have jurisdiction  to            review an  order restricting  a pro  se  litigant's right  of                                            ___  __            access even when  no new  filing has, as  yet, been  rejected            under the order.  See Moy v. United States, 906 F.2d 467, 470                              ___ ___    _____________            (9th Cir.  1990) (collecting  cases); Pavilonis v.  King, 626                                                  _________     ____            F.2d  1075,  1077 (1st  Cir.),  cert.  denied,  449 U.S.  829                                            ____   ______            (1980).                                         -5-             Castro v. United States, 775 F.2d 399, 408 (1st Cir. 1985);             ______    _____________             Pavilonis  v. King, 626  F.2d 1075, 1079  (1st Cir.), cert.             _________     ____                                    ____             denied  449 U.S.  829  (1980).   However, the  restrictions             ______             imposed  must  be tailored  to  the specific  circumstances             presented.   Castro, 775 F.2d  at 410 ("[I]f  an injunction                          ______             against  future litigation  were  couched  in overly  broad             terms, this could impermissibly infringe upon a litigator's             right of access to the courts"); see also Sires v. Gabriel,                                              ___ ____ _____    _______             748 F.2d 49, 51-52 (1st Cir. 1984).                      To  determine the appropriateness of an injunction             barring a litigant from bringing without advance permission             any action in the district court, we look to  the degree to             ___             which  indicia  supporting  such a  comprehensive  ban  are             present in  the record.  We have said that the use of broad             filing restrictions against  pro se  plaintiffs "should  be                                          ___ __             approached  with particular caution."   Pavilonis, 626 F.2d                                                     _________             at 1079.  We have also required,  like other jurisdictions,             that in such situations  a sufficiently developed record be             presented for review.  See, e.g., Castro, 775 F.2d at 409 &                                    ___  ____  ______             n.11; see also De Long v. Hennessey, 912 F.2d 1144, 1147-48                   ___ ____ _______    _________             (9th  Cir.), cert.  denied, 111  S. Ct.  562 (1990);  In re                          _____  ______                            _____             Powell, 851 F.2d 427, 431 (D.C. Cir. 1988).             ______                      An initial problem with the present  injunction is             that  Cok was  not  warned or  otherwise given  notice that             filing  restrictions  were  contemplated.    She  thus  was                                         -6-             without an opportunity  to respond  before the  restrictive             filing  order was entered.  Adequate notice may be informal             but should  be afforded.   For  example, in  Pavilonis, 626                                                          _________             F.2d at  1077, a  magistrate's report recommended  that the             district court impose filing restrictions and the plaintiff             filed  objections to that report.   In Castro,  775 F.2d at                                                    ______             402,  the defendants  tried to  enjoin the  plaintiffs from             relitigating matters arising out of the case at hand or any             earlier   litigation   between    the   parties.      Where             recommendations or  requests like  this do not  come first,             courts have  issued  show cause  orders  to errant  pro  se                                                                 ___  __             litigators, Cofield  v. Alabama Pub. Serv.  Comm., 936 F.2d                         _______     _________________________             512,  514 (11th  Cir. 1991), or  have entered  a cautionary             order  to the effect that filing restrictions may be in the             offing in  response to  groundless litigation.   See, e.g.,                                                              ___  ____             Martin v. District of Columbia Court of Appeals, 113 S. Ct.             ______    _____________________________________             397, 398 (1992); Ketchum  v. Cruz, 961 F.2d 916,  918 (10th                              _______     ____             Cir. 1992);  Winslow  v. Romer, 759  F. Supp. 670, 678  (D.                          _______     _____             Colo.  1991)  (plaintiff   repeatedly  "informed"  that   a             litigant may not collaterally attack a state court judgment             or  order in  federal court,  or unilaterally  declare such             judgments or orders void, and then use that proclamation as             the  basis  for  an  action  against  court  or  government             officials,  attorneys,  or other  parties).    Here, as  in             Sires,  748  F.2d at  51, the  defendants  did not  seek an             _____                                         -7-             injunction  nor  did  they  maintain  that  they  had  been             harassed by Cok's  conduct.  We think, therefore,  that Cok             should  have been  given  an opportunity  by  the court  to             oppose the entry of so broad an order placing  restrictions             on court access.  Accord De Long, 912 F.2d at 1147; Tripati                               ______ _______                    _______             v. Beaman, 878 F.2d 351 (10th Cir. 1989); In re Powell, 851                ______                                 ____________             F.2d at 431; Gagliardi  v. McWilliams, 834 F.2d 81,  83 (3d                          _________     __________             Cir. 1987); In re Hartford Textile Corp., 613 F.2d 388, 390                         ____________________________             (2d Cir. 1979), cert. denied, 447 U.S. 907 (1980) (district                             ____  ______             court,  in  entering sua  sponte  order  curtailing pro  se                                  ___  ______                    ___  __             litigant's future  access to  the courts, must  give notice             and allow litigant to be heard on the matter).                      A  second  question  is   whether  the  record  is             sufficiently  developed  to  show  that  an  injunction  as             sweeping as this one is warranted.  Plaintiff  is enjoined,             inter alia, from "commencing any actions in this court, pro             _____ ____             se, without prior  approval. .  . ."   It  would have  been             helpful  had  the court  identified  what previously  filed             frivolous cases or  other abuses  caused it  to issue  this             injunction.  See, e.g.,  Castro, 775 F.2d at 409  n.11; see                          ___  ____   ______                         ___             also Martin, 113 S. Ct. at 397 nn.1 & 2; In re Sindram, 498             ____ ______                              _____________             U.S. 177 n.1 (1991); De Long, 912 F.2d at 1147-48; Tripati,                                  _______                       _______             878 F.2d at 353; In re Martin-Trigona, 737 F.2d 1254, 1264-                              ____________________             74 (2d Cir. 1984)  (reciting history of extensive filings).             While  it is clear enough that - beyond the instant removal                                         -8-             -Cok  made   a  misguided  removal  effort   in  1984,  and             unsuccessfully  sued the guardian  ad litem  thereafter, we             are  unclear whether  these  were the  full  extent of  her             actions leading to the injunction.  If they were, the court             should have  explained why it  felt it appropriate  to ban,             without  findings as to the abuses  of the judicial process             causing imposition  of the injunction, the  commencement of             "any  actions in this court" (as opposed, for example, to a             ban  merely on further  attempts, without authorization, to             remove,  pro se,  more  proceedings from  the Rhode  Island             Family Court divorce case).  See Sires, 748 F.2d at 51; see                                          ___ _____                  ___             also De Long,  912 F.2d at 1148; In re  Powell, 851 F.2d at             ____ _______                     _____________             431.  Injunctions restricting court access across the board             in  all cases are very  much "the exception  to the general             rule of free access to the courts."  Pavilonis, 626 F.2d at                                                  _________             1079.   They  should  be  issued  only  when  abuse  is  so             continuous  and  widespread  as  to  suggest  no reasonable             alternative.                      We emphasize that it is the breadth of the instant             order  that causes us some  concern.  Had  the court, after             notice and opportunity to respond, merely enjoined Cok from             further frivolous removals from  the family court, we would             have doubtless approved.   The present record supports such             a  limited  order.    We  have  not  hesitated   to  uphold             injunctions   that  were  narrowly  drawn  to  counter  the                                         -9-             specific offending conduct.   Castro, 775 F.2d at  410; cf.                                           ______                    ___             Pavilonis,   626  F.2d  at   1079  (upholding  issuance  of             _________             injunction but narrowing its scope).  But this order is not             limited to  restricting improper conduct of  the type which             the present record indicates plaintiff has displayed in the             past.  If  the "specific  vice" sought to  be curtailed  is             simply the appellant's  propensity, as here and in 1984, to             attempt improper removals to federal court of matters based             on her  state divorce  proceeding, the district  court may,             after notice, wish to enter an order limiting such conduct.             See  Castro, 775 F.2d  at 410.   On the other  hand, if the             ___  ______             court means to issue a more generalized injunction aimed at             preventing the  bringing of any and all  unpermitted pro se                                                                  ___ __             actions in  the district  court, it  must develop  a record             showing such widespread abuse of the judicial system  as to             warrant such a broadcast prohibition.  Id. at 410 n.13.                                                      ___                      We  recognize that  the district  court is  in the             best  position to  set preconditions  on access and  do not             prescribe  any  particular  design for  such  restraints to             take.   See Procup v. Strickland, 792 F.2d 1069, 1073 (11th                     ___ ______    __________             Cir. 1986) (en banc) (compiling illustrative restrictions);             see  also Abdul-Akbar v. Watson, 901 F.2d 329, 333 (3d Cir.             ___  ____ ___________    ______             1990);  Cotner v.  Hopkins, 795  F.2d 900,  902 (10th  Cir.                     ______     _______             1986); Winslow, 759 F. Supp.  at 678, 683-85.  We  are also                    _______             sympathetic  to  the difficult  task  faced by  a  court in                                         -10-             attempting  to  ensure  that  judicial  resources  are  not             misused  by abusive  litigants.   The present  litigant has             clearly been acting in an unacceptable manner.  But for the             reasons discussed  above, we  are unable, without  more, to             affirm an injunction of unlimited breadth.                                      CONCLUSION                                      CONCLUSION                                      __________                      Plaintiff's   appeal  from  the  remand  order  is             dismissed for  lack  of jurisdiction.    The order  as  now             _________             worded  enjoining  the  plaintiff,  pro  se, from  removing                                                 ___  __             family  court matters  and  commencing any  actions in  the             district court, pro se,  without prior approval, is vacated                             ___ __                              _______             and remanded to the  district court for further proceedings                 ________             not inconsistent with this opinion.                      Appellant's  pending motion  for  a  stay of  this             appeal is denied.                      So ordered.                      __ _______                                         -11-
