USCA1 Opinion
December 30. 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1604
WILFRED HART,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Bownes, Senior Circuit Judge, and ____________________
Stahl, Circuit Judge. _____________
____________________
Wilfred Hart, Jr., on brief pro se. ________________
Jay P. McCloskey, United States Attorney, and Margaret D. __________________ _____________
McGaughey, Assistant United States Attorney, on brief for appellee. _________
____________________
____________________
Per Curiam. Plaintiff-appellant Wilfred Hart, Jr. ___________
has appealed from a district court order denying him leave to
file a motion to dissolve a district court injunction barring
him from certain filings without leave of court. We affirm
the district court's ruling.
On June 23, 1992, the district court entered the
following injunction against Hart:
It is hereby ORDERED that Wilfred Hart is _______
enjoined from filing any motions, pleadings
or papers of whatever type or description in
the District of Maine, in connection with his
1988 conviction for controlled substance
violations without prior leave of Court.
Hart may seek leave of Court by filing a
summary of the claims he seeks to raise (not
to exceed one page per claim) together with
an affidavit certifying that the claims are
novel and have not previously been raised
before this Court or any other federal court.
Upon failure to so certify or failure to so
certify truthfully, Hart may be found in
contempt of court and punished accordingly.
The injunction was issued in response to what the district court
described as Hart's "frivolous motions and duplicative pleadings
which encroach on the Court's limited time and resources, . . .
which can only be calculated to disrupt the orderly consideration
of cases, . . . and which merely restate claims which have
already made [sic] and which have been denied."
Hart appealed the injunction to this court, challenging
its legality and constitutionality on a number of grounds,
including vagueness. On March 21, 1994, this court rejected all
of Hart's challenges, and affirmed the injunction. Hart v. ____
United States, slip op., nos. 92-1801, 92-2292, 92-2449 (1st Cir. _____________
3/21/94) (unpublished). We stated that we would "leave the
construction of the injunction to the district court in the first
instance." Id. at 6. __
On May 20, 1994, Hart filed a motion for leave of court to
file an accompanying motion for a three-judge panel to dissolve
the injunction. The underlying motion to dissolve argued that
the district court's "operative construction" of the injunction
was so narrow as to unconstitutionally limit Hart's access to the
courts. On the same day, the district court denied the motion
for leave of court, endorsing it as follows: "Claim has
previously been raised and is therefore not novel." Hart
appeals.
On the surface, it would seem that in his May 20 motion
Hart did seek to raise an issue not raised in his appeal. The
appeal upheld the facial terms of the injunction, whereas Hart's
May 20 motion seems to challenge the constitutionality of the
manner in which the district court has later construed and
applied the injunction. In fact, however, Hart's motion fails to
specify in what way the district court should be thought to have
applied the injunction in an unconstitutional manner. Hart's
motion, therefore, appears to be, in substance, nothing more than
another attack on the terms of the injunction. Such an attack is
not novel, having already been mounted in Hart's prior appeal.
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In any event, even if Hart's motion were to be regarded as
raising a novel claim, we would affirm its dismissal on the
ground that it was frivolous. Insofar as Hart's motion once
again challenges the terms of the injunction, res judicata bars
any relief by virtue of our prior ruling. Insofar as the motion
does assert that the injunction has been applied in an
unconstitutional manner, the motion provides no basis for such a
conclusion. Any challenge to the injunction's application,
moreover, should properly be raised in conjunction with the
particular matter to which the injunction allegedly has been
improperly applied. Finally, the motion's request that a three-
judge court be convened to consider the matter is frivolous.
The ruling of the district court is affirmed. ________
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