Gladys L. Cok v. Family Court of Rhode Island
985 F.2d 32
1st Cir.
1993
Check Treatment
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

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 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 plaintiffs 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 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

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. 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, 101 S.Ct. 96, 66 L.Ed.2d 34 (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, 498 U.S. 1001, 111 S.Ct. 562, 112 L.Ed.2d 569 (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 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, — U.S. -, -, 113 S.Ct. 397, 398, 121 L.Ed.2d 305 (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 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), (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, — U.S. at -, 113 S.Ct. at 397 nn.1 & 2; In re Sindram, 498 U.S. 177 n. 1, 111 S.Ct. 596 n. 1, 112 L.Ed.2d 599 (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 — 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 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 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

Plaintiffs 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.

Notes

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.

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, 101 S.Ct. 96, 66 L.Ed.2d 34 (1980).