Hickey v. Wellesley

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 94-1642 

                                    LAURA HICKEY,
                                Plaintiff, Appellant,

                                          v.

                          WELLESLEY PUBLIC SCHOOLS, ET AL.,
                                Defendants, Appellees.
                                 ____________________

        No. 94-1965

                                    LAURA HICKEY,
                                Plaintiff, Appellant,

                                          v.

                         WELLESLEY SCHOOL COMMITTEE, ET AL.,
                                Defendants, Appellees.

                                                     
                                 ____________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

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

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                                Boudin, Circuit Judge.
                                        _____________
                                 ____________________

            Laura Hickey on briefs pro se.
            ____________
            Albert S. Robinson on briefs for appellees.
            __________________

                                 ____________________

                                   January 25, 1995
                                 ____________________



Per Curiam.   We  have carefully  reviewed the  parties'
                 __________

            briefs  and  the record  on  appeal.   Insofar  as  appellant

            contends  that the district court was without jurisdiction to

            issue its  order of dismissal,  dated April 29, 1994,  she is

            incorrect.   Mandate in  appellant's prior  appeal issued  on

            February 18,  1994.  "The  effect of the mandate  is to bring

            the proceedings  in a case on appeal in  our Court to a close

            and  to remove  it  from  the  jurisdiction  of  this  Court,

            returning it to the forum whence it came."  Ostrer  v. United
                                                        ______     ______

            States, 584  F.2d  594, 598  (2d  Cir. 1978);  accord  United
            ______                                         ______  ______

            States v. Rush, 738 F.2d 497, 509 (1st Cir. 1984) ("it is the
            ______    ____

            date on which the mandate is issued which determines when the

            district   court   reacquires    jurisdiction   for   further

            proceedings"), cert. denied, 470 U.S. 1004 (1985).  Moreover,
                           ____________

            the mere  filing of  a petition  for certiorari without  also

            timely asking for,  and obtaining, a stay of  mandate did not

            prevent the district court from acting as it did.  "[N]either

            the right to petition for a writ of certiorari nor the actual

            filing of such  a petition stays enforcement of  the judgment

            sought to  be reviewed by  certiorari."  2  Fed Proc, L  Ed  

            3:131 (1994).

                 Secondly, we do not find  that the district court abused

            its discretion in ordering dismissal  in this case.  See Link
                                                                 ___ ____

            v. Wabash R.R.,  370 U.S. 626, 633 (1962)  (reciting that the
               ___________

            proper standard is abuse of  discretion).  In Cosme Nieves v.
                                                          ____________

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Deshler, 826 F.2d 1,  2 (1st Cir.  1987), we said that  "[i]n
            _______

            all the cases in which we have upheld a dismissal for want of

            prosecution,  we  have  found   either  extremely  protracted
                                            ______

            inaction (measured  in years), disobedience  of court orders,

            ignorance  of warnings,  contumacious conduct, or  some other
                                                           __

            aggravating  circumstance."  Id.   (Emphasis added.)  We have
                                         ___

            defined   "other   aggravating  circumstances"   to   include

            "prejudice  to  the  defendant,  glaring  weaknesses  in  the

            plaintiff's  case,  and   the  wasteful   expenditure  of   a

            significant amount  of the  district court's  time."   Enlace
                                                                   ______

            Mercantil Internacional v.  Senior Indus., 848 F.2d  315, 317
            _______________________     _____________

            (1st  Cir. 1988) (footnotes omitted).  Appellant's litigation

            efforts in this matter are directed at dragging out claims of

            dubious merit  beyond any reasonable expectation  of success.

            We recite but a brief overview.

                 In 1988, the  state Department  of Education  determined

            that the defendants had fully complied with federal and state

            law.  Also in 1988, the district court, in denying successive

            requests   for   preliminary   injunctive  relief,   made   a

            determination that appellant's  lawsuit was not likely  to be

            successful.  After filing appeals from each of the denials of

            preliminary  injunctive relief,  appellant's mother,  who was

            litigating  on her then-minor daughter's behalf, moved for an

            expedited trial, but  then three times  failed to attend  her

            scheduled  deposition - in  each instance, giving  very short

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notice  that  she  would  not  attend -  and  on  the  fourth

            scheduled date, abruptly terminated the deposition.  Two days

            before the scheduled fifth date, she informed the court  that

            she and appellant had moved to Texas and asked to voluntarily

            dismiss the lawsuit without prejudice.

                 Three  years  later,  appellant  sought  to  reinstitute

            essentially   the  same   lawsuit.     Presumably,  appellant

            graduated in June  1989; yet there is no  explanation for the

            2+   years  of  inactivity  from  then  until  the  attempted

            reinstitution in September 1991.  Although the district court

            found that full payment of  the defendants' fees and expenses

            ($6,598.50) in defending the aborted suit would be justified,

            in recognition of the appellant's indigency, it required only

            that  appellant  deposit  $1,000 into  the  Court's  Registry

            pending  the  outcome  of  the  new lawsuit  and  to  file  a

            clarification of the  basis for her new action.   We affirmed

            that order as a  justifiable balance of appellant's right  of

            access to the  court process with  her responsibility to  use

            that process appropriately.   After granting an  extension of

            time in which to file  it, we denied appellant's petition for

            rehearing.  As noted, mandate issued on February 18, 1994.

                 The  district court  warned  appellant,  by order  dated

            March 9, 1994,  that her suit would be  dismissed for lack of

            prosecution unless, by  April 15, she deposited the $1,000 in

            the   Court  Registry   and   filed  the   required   written

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clarification.  Appellant's response was tepid, at best.  She

            informed the  district court  of her  "interest" in  filing a

            motion  to recall  mandate in  the court  of appeals  and her

            "intention"  to timely seek certiorari in the Supreme Court.1

            She  did not  seek a  stay  pending her  attempts at  further

            review,  offer to  pay  even  part of  the  $1,000, file  the

            written clarification or  suggest why even that  filing would

            be burdensome.  Her response is best viewed for what it truly

            represents  - more delaying tactics, unlikely to succeed, and

            not warranting the withholding of dismissal.

                 The  "glaring weaknesses  in  the plaintiff's  case" are

            self-evident  even from this summary recitation of the course

            of this  litigation.   In 1988, the  state Bureau  of Special

            Education Appeals  determined that  the defendants  had fully

            complied  with state  and federal  law.   Also  in 1988,  the

            district  court, in  denying  preliminary injunctive  relief,

            concluded  that she  was unlikely  to prevail on  the merits.

            Nothing  since  that time  suggests the  contrary.   And, the

            defendants  have  had  to  endure  appellant's  "dodging  and

            weaving" tactics of litigation -- which consisted of pressing

            for injunctive relief  and expedited trial  in 1988, only  to

            come to  a screeching halt  when prospects of  success looked

            dim, and  then springing to  life again three years  later in

____________________

            1.  Certiorari  was,  in  fact, denied  on  October  3, 1994.
            Hickey v. Wellesley Sch. Comm., 115 S. Ct. 112 (1994).
            ______    ____________________

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1991, resulting in  another three years of litigation.   This

            case has  consumed more amount  of the district  court's time

            than it warrants.

                 Finally, appellant  has appealed from  an order  denying

            her motion "to correct the record and request  for accounting

            from  court  of  all  handwritten  notes,  books,  documents,

            records,   papers,  tapes,  etc.  of  the  Court's  Order  of

            Dismissal dated April 29,  1994."  Appellant claims that  she

            did not  receive a copy of the  dismissal order until May 26,

            and  so, she  further claims,  dismissal  must have  actually

            occurred on May 23 or 24, but was back-dated to April 29.  We

            have grave doubts about each of these allegations.  Appellant

            also has failed to  support her claim that she is entitled to

            "handwritten notes" and the like.  In any event, the district

            court gave appellant an extension of time to file a notice of

            appeal from the order of  dismissal.  We have considered that

            appeal and it is meritless.

                 The order of dismissal and the  order denying the motion

            to correct the record and for an accounting are affirmed.
                                                            _________

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