Cok v. Family

• Court: Court of Appeals for the First Circuit
• Decided: February 26, 1993
• Docket: 92-1600
• Status: Published

Opinion

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

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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
                                                   _____________________

             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.

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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.
                                                     ___

                                    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

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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
                                                          _________

             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
             _____

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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
                               ______ _______                    _______

             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

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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
                                          ___ _____                  ___

             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

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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

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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
                                      __________

                      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.
                      __ _______

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