Robert Procup v. C. Strickland

TJOFLAT, Circuit Judge,

dissenting:

The majority’s opinion recites a compelling tale of the problems abusive litigants, including Procup, can pose for the federal courts. An even more compelling version can be found in the district court’s opinion. In its eagerness to sanction a means to curb these abuses, however, the majority neglects the time-honored principle that a court of appeals is constrained to decide only appealable decisions of the district court. The majority’s opinion fails to discuss how this case arose, what actions were taken in the district court, and how the case came to this court on appeal. In fact, the majority’s opinion scarcely acknowledges that the order in question arose in the context of an actual lawsuit. A proper consideration of the procedural history of this case in the district court makes it apparent that this court lacks jurisdiction to entertain this appeal.

Procup, a Florida prisoner serving a life sentence, initiated this litigation by filing a 42 U.S.C. § 1983 (1982) action against various prison officials, complaining of his treatment in prison. Attached to the complaint was an affidavit asserting that Procup lacked sufficient funds to prepay the fees associated with commencing an action in the district court. The affidavit was sufficient on its face as to economic eligibility to allow Procup to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(a) (1982), and the complaint was accordingly placed on the docket. See Watson v. Ault, 525 F.2d 886, 891 (5th Cir.1976).1

*1075The district court, noting the volume and nature of Procup’s previous litigation, issued an order to show cause why an injunction should not issue prohibiting Procup from filing any further pleadings in the district court. The Florida attorney general’s office was sent a copy of the show cause order and given the opportunity to present its position to the court. Following the receipt of responses from both parties, the district court issued an opinion finding that Procup had engaged in extensive and abusive litigation in an attempt to disrupt the functioning of the federal courts and that sanctions were warranted. The district court concluded that the sanction necessary to curb Procup’s abuses was an order “enjoining” the clerk of the court from filing any additional cases, or pleadings in those additional cases, submitted by Procup unless such additional cases or pleadings were submitted on behalf of Procup by an attorney.2 The district court rejected Procup’s motions to reconsider its order and his attempts to have the “injunction” dissolved and granted Procup leave to appeal in forma pauperis.

The district court has made no finding that this case brought by Procup is frivolous or malicious. As far as the record indicates, Procup’s section 1983 suit is still pending before the district court. The court’s order to the clerk pertains to “additional cases or pleadings therein” and apparently does not preclude Procup from litigating his current action.3 In fact, contrary to any finding of frivolousness, Procup has, in effect, obtained leave to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(a) (1982), and the district court has not undertaken to dismiss the case as frivolous under 28 U.S.C. § 1915(d) (1982). See supra note 1.

It is therefore beyond dispute that the district court has not rendered a final decision appealable pursuant to 28 U.S.C. § 1291 (1982). The district court’s order is interlocutory in nature and could only be appealed if it constituted an order granting an injunction within 28 U.S.C. § 1292(a)(1) (1982).4 It is therefore necessary to look beyond what the district court’s order was called and carefully consider its true nature.

The first thing to note, which is apparent on the face of the order, is that the court did not enjoin Procup's activities in any way. The order was directed to the clerk of the court, “enjoining” the clerk from filing non-complying pleadings. A careful reading of the court’s order discloses that it does not attempt to constrain Procup’s conduct in any fashion. In fact, the order contemplates that Procup probably will file *1076additional cases or pleadings without a licensed attorney’s participation. Because the district court expected such a situation to arise, it directed the clerk of the court to refuse to accept such filings. Contrary to the suggestion in the majority opinion, ante p. 1070, n. 1, Procup would not be in contempt of the court’s order if he filed additional pleadings not signed by an attorney because the court’s order does not prohibit such filings; it merely instructs the clerk of the court to refuse them.5 Nor can it be said that, although not directed at Procup, the order had the effect of preventing him from litigating this case. The district court did not issue the order to enable it to adjudicate the case before it. On the contrary, the order was inapplicable to pending cases. It is also clear that the court did not grant injunctive relief against Procup at the behest of beleaguered litigants harassed by Procup’s litigation tactics. In sum, the district court’s order was not tantamount to the granting of an injunction in this case6 and is not appealable as an interlocutory order under 28 U.S.C. § 1292(a)(1) (1982).

Although the order in question bears some resemblance to a sanction imposed pursuant to Fed.R.Civ.P. 11, it could not be characterized as such. Rule 11, which grants the district courts wide latitude to sanction a litigant or attorney who submits a baseless pleading, motion, or paper, could not be invoked in a case such as this where there has been no finding that the complaint in question failed to comply with the rule’s requirements. In this case’s current posture, we must assume that Procup’s pleading satisfies the standard imposed by Rule 11 and is not abusive.7

The district court’s order, despite being entitled a permanent injunction, is in effect an administrative order, directed to the clerk of the court, governing the way the court will handle its business in the future as to one particular litigant. Although entered in the context of this case, the order bears no relation to it. There is no right to take an appeal from such an order where it has no effect on the current case. As pointed out previously, the district court has not prevented Procup from litigating this case to a conclusion.

A situation precisely on point arose in Pavilonis v. King, 626 F.2d 1075 (1st Cir.), cert. denied, 449 U.S. 829, 101 S.Ct. 96, 66 L.Ed.2d 34 (1980). Pavilonis brought two civil rights suits against various officials connected with the Boston schools. The district court issued an order enjoining Pavilonis from filing new lawsuits without leave of court and directed the clerk to refuse to accept non-complying papers. No action was taken with regard to the pending complaints. The district court refused to vacate its order and Pavilonis appealed. The First Circuit Court of Appeals dis*1077missed the appeal because final judgments had not been entered in the lawsuits. Pavilonis v. King, 626 F.2d at 1077 n. 4. Sometime thereafter, the district court dismissed Pavilonis’ complaints and an appeal ensued. At that point, with final judgments rendered, the court of appeals was able to review the district court’s dismissal of the suits and the appropriateness of the sanction it imposed. Our circuit, employing established legal principles, should reach the same result reached by the First Circuit. Procup’s appeal should be dismissed, and appellate review must await final disposition by the district court.8

Accordingly, I must respectfully dissent from the court's judgment.

. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. In Watson, the court discussed the procedure to be followed under the in forma pauperis statute, 28 U.S.C. § 1915 (1982). If an affidavit filed with a complaint demonstrates economic eligibility, the requirements of section 1915(a) are satisfied and the district court must docket the case. The court may then proceed to the inquiry dictated by section 1915(d) and dismiss the case if the allegation of poverty is untrue or if the action is frivolous or malicious.

. The full text of the order is as follows:

PERMANENT INJUNCTION

In accordance with the Opinion entered herein on this date, it is

ADJUDGED that the Clerk of Court for the United States District Court for the Middle District of Florida is hereby permanently enjoined from filing any additional cases or pleadings therein submitted by or on behalf of Robert Procup, unless such additional cases or pleadings therein are submitted on behalf of Procup by a duly licensed attorney admitted to practice before this Court.

DONE AND ORDERED at Jacksonville, Florida, this 17 day of June, 1983.

. Although this point was at one time disputed by the parties, both parties now appear to concede that the order does not apply to pending cases. The language of the order is consistent with this conclusion. Cf. Procup v. Strickland, 760 F.2d 1107, 1110 n. 3 (11th Cir.1985) (panel inclined to construe order as inapplicable to pending cases).

. The court’s order does not have the attributes of the limited class of collateral orders appeal-able under the doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), where immediate review of separate and independent matters is necessary to secure important interests. To the extent the district court’s order is currently preventing Procup from filing any new lawsuit that he has the right to pursue, there is an available mechanism whereby Procup can contest the validity of the district court’s order. If and when the clerk of the district court, pursuant to the order in question, refuses to file a future case or pleading. Procup could seek a writ of mandamus from the district court ordering the clerk to accept and file such papers. If the district court refuses to issue the writ and Procup appeals, the validity of the district court’s order would be squarely before this court.

. Waffenschmidt v. MacKay, 763 F.2d 711 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 794, 88 L.Ed.2d 771 (1986), and United States v. Hall, 472 F.2d 261 (5th Cir.1972), are not to the contrary. In those cases, the district court’s injunctive order had been violated and the issue was whether a nonparty who violated an injunction or aided and abetted in its violation could be held in contempt. In both cases, a clear violation of the injunctive order had occurred. In contrast, should Procup, without a licensed attorney, tender a new pleading to the clerk for filing, Procup would have done nothing prohibited by the court’s order.

. The majority’s opinion points out, ante p. 1070, n. 1, that the district court’s show cause order asked Procup to demonstrate why the court should not enjoin his conduct. After hearing from the parties and giving the matter its consideration, the court decided against issuing an injunction addressed to Procup, instead entering an order directed to the clerk of the court. It is of no moment that the court may have, at one time, considered enjoining Procup, for it failed to do so.

. If the district court had found the present complaint frivolous, noted a history of abusive litigation, imposed a Rule 11 sanction, and dismissed the complaint, we would have an appeal-able order. The dismissal of the complaint would, of course, be subject to appellate review. In addition, we could review the sanction imposed and determine if the district court was within its authority to impose such a sanction and whether the imposition of the sanction was an appropriate exercise of the court’s discretion. Even in that situation, the application of the sanction in some future case might raise problems that could only be appropriately reviewed when that actual controversy arose.

. Were I to reach the merits of this case, I would agree that the district court’s order must be vacated. As an initial matter, the district court proceeded quite irregularly by issuing such an order without first assessing the complaint in this case. Second, the order’s application to even the most meritorious future filing presents obvious problems. Finally, the order violates the long-established principle that a court exercising its equitable powers or its inherent powers should do so in a measured fashion, narrowly tailoring the relief to accomplish its intended goal, and proceeding to more drastic means only if necessary. Having concluded that this order must be vacated, the majority opinion goes further and, in dicta, engages in substantial speculation as to what type of sanctions might be agreeable. The inclusion of a laundry list of possible sanctions that may or may not present constitutional or other problems in particular situations is both ill-advised and wholly unnecessary to the resolution of this case.