USCA1 Opinion
February 9, 1993
UNITED STATES COURT OF APPEALS
For The First Circuit
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No. 92-1600
GLADYS L. COK,
Plaintiff, Appellant,
v.
FAMILY COURT OF RHODE ISLAND, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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Torruella, Circuit Judge.
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Gladys L. Cok on brief pro se.
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James E. O'Neil, Attorney General, and Richard B. Woolley,
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Assistant Attorney General, on brief for appellees.
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February 9, 1993
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Per Curiam. Pro se plaintiff-appellant Cok
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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
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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.
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May 1, 1985). Thereafter, in Cok v. Cosentino, 876 F.2d 1
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(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
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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
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of Law Committee v. Gordon, 979 F.2d 11 (1st Cir. 1992).
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In Unauthorized Practice, involving, as here, a remand
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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
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13. The same result applies here.
Unlike the plaintiff in Unauthorized Practice, Cok
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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
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language precluding review of remand orders "on appeal or
otherwise" (emphasis added), whether the district court was
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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.
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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.
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THE INJUNCTION
THE INJUNCTION
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At the hearing on the motion to reconsider the
remand order, the district court, sua sponte, enjoined Cok
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from attempting the pro se removal of any matters from the
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family court, or from filing any pro se actions in district
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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.
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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
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access even when no new filing has, as yet, been rejected
under the order. See Moy v. United States, 906 F.2d 467, 470
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(9th Cir. 1990) (collecting cases); Pavilonis v. King, 626
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F.2d 1075, 1077 (1st Cir.), cert. denied, 449 U.S. 829
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(1980).
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Castro v. United States, 775 F.2d 399, 408 (1st Cir. 1985);
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Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir.), cert.
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denied 449 U.S. 829 (1980). However, the restrictions
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imposed must be tailored to the specific circumstances
presented. Castro, 775 F.2d at 410 ("[I]f an injunction
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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,
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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
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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
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approached with particular caution." Pavilonis, 626 F.2d
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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 &
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n.11; see also De Long v. Hennessey, 912 F.2d 1144, 1147-48
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(9th Cir.), cert. denied, 111 S. Ct. 562 (1990); In re
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Powell, 851 F.2d 427, 431 (D.C. Cir. 1988).
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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
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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
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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
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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
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litigators, Cofield v. Alabama Pub. Serv. Comm., 936 F.2d
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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.,
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Martin v. District of Columbia Court of Appeals, 113 S. Ct.
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397, 398 (1992); Ketchum v. Cruz, 961 F.2d 916, 918 (10th
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Cir. 1992); Winslow v. Romer, 759 F. Supp. 670, 678 (D.
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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
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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
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v. Beaman, 878 F.2d 351 (10th Cir. 1989); In re Powell, 851
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F.2d at 431; Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d
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Cir. 1987); In re Hartford Textile Corp., 613 F.2d 388, 390
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(2d Cir. 1979), cert. denied, 447 U.S. 907 (1980) (district
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court, in entering sua sponte order curtailing pro se
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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
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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
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also Martin, 113 S. Ct. at 397 nn.1 & 2; In re Sindram, 498
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U.S. 177 n.1 (1991); De Long, 912 F.2d at 1147-48; Tripati,
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878 F.2d at 353; In re Martin-Trigona, 737 F.2d 1254, 1264-
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74 (2d Cir. 1984) (reciting history of extensive filings).
While it is clear enough that - beyond the instant removal
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-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
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also De Long, 912 F.2d at 1148; In re Powell, 851 F.2d at
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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
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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
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specific offending conduct. Castro, 775 F.2d at 410; cf.
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Pavilonis, 626 F.2d at 1079 (upholding issuance of
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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
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court means to issue a more generalized injunction aimed at
preventing the bringing of any and all unpermitted pro se
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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.
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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
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Cir. 1986) (en banc) (compiling illustrative restrictions);
see also Abdul-Akbar v. Watson, 901 F.2d 329, 333 (3d Cir.
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1990); Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir.
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1986); Winslow, 759 F. Supp. at 678, 683-85. We are also
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sympathetic to the difficult task faced by a court in
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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
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Plaintiff's appeal from the remand order is
dismissed for lack of jurisdiction. The order as now
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worded enjoining the plaintiff, pro se, from removing
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family court matters and commencing any actions in the
district court, pro se, without prior approval, is vacated
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and remanded to the district court for further proceedings
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not inconsistent with this opinion.
Appellant's pending motion for a stay of this
appeal is denied.
So ordered.
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