Cole v. Disantis

Opinion

USCA1 Opinion

July 18, 1996         [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________


No. 96-1354


RICHARD A. COLE, AND RICHARD A. COLE, M.D., INC.,



                               Plaintiffs, Appellants,



                                          v.



             ERNEST J. DISANTIS, JR., FORMER U.S. ATTORNEY, WESTERN, PA.,



                                Defendants, Appellees.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Douglas P. Woodlock, U.S. District Judge]
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                                 ____________________


Before



                                Selya, Cyr and Boudin,

                                   Circuit Judges.
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                                 ____________________


Richard A. Cole, M.D. F.A.C.P. on brief pro se.
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____________________


____________________



Per Curiam.  Having carefully  reviewed the record,
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            appellant's   brief,  and  appellees'   motions  for  summary



            disposition,  we  affirm  the  order  of  dismissal  and  the



            injunction  for the reasons stated by the district court.  We



            add only these comments.



                      Because appellant did not  offer any showing that a



            transfer would  be in  the interest  of justice, we  conclude



            that the  district  court did  not  abuse its  discretion  in



            failing to order one under 28  U.S.C.   1406(a).  See Cote v.
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            Wadel, 796 F.2d  981, 984  (7th Cir. 1986);  Dubin v.  United
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            States, 380 F.2d  813, 816 (5th Cir. 1967)(it is  not "in the
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            interest  of justice" to use   1406(a) to "aid a non-diligent



            plaintiff who knowingly files a case in the wrong district");



            see also Mulcahy v. Guertler, 416 F.Supp. 1083, 1086 (D.Mass.
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            1976).



                      With respect to the injunction, the  district court



            made adequate findings that appellant's many improper filings



            in Massachusetts  were an  abuse of process  causing needless



            expense  and  inconvenience.   The  injunction  concerns only



            filings  against  the  federal  defendants  in  Massachusetts



            district  court, and  it  allows appellant  to  apply to  the



            district court for  leave to  file claims upon  a showing  of



            personal  jurisdiction, proper  venue, and  merit.   In these



            circumstances,  we perceive  no abuse  of discretion  in this



            limitation on  appellant's future filings.   See Pavilonis v.
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King,  626 F.2d 1075, 1079 (1st Cir.), cert. denied, 449 U.S.
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            829 (1980); cf. Cok v. Family Court of Rhode Island, 985 F.2d
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            32, 34 (1st Cir. 1993). 



                      Affirmed.  See 1st Cir. Loc. R. 27.1.
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