
USCA1 Opinion

	




          April 11, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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  & Assocs., P.                           ______________            ____________________            A.,  John H. Rich III, William Sheils, and Perkins, Thompson,            __   ________________  ______________      __________________            Hinckley & Keddy were on brief, for appellant.            ________________                           James G. Goggin,  with whom Roy S.  McCandless                           _______________             __________________            and Verrill & 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
