The West Virginia Department of Highways v. Robert W. Hart , 915 F.2d 1566 ( 1990 )

915 F.2d 1566
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
The WEST VIRGINIA DEPARTMENT OF HIGHWAYS, Plaintiff--Appellee,
v.
Robert W. HART, Defendant--Appellant.

No. 90-2126.

United States Court of Appeals, Fourth Circuit.

Submitted Aug. 27, 1990.
Decided Sept. 28, 1990.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Robert Earl Maxwell, Chief District Judge. (CA-89-99-C)

Robert W. Hart, appellant pro se.

Jeffrey Jay Miller, West Virginia Department of Transportation, Charleston, W.V., for appellee.

N.D.W.Va.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

1

Robert W. Hart appeals from the district court's order denying his "petition for removal of state civil action into the federal court" and denying relief under 42 U.S.C. Sec. 1983. The court determined that Hart's petition was frivolous and his Sec. 1983 claim was barred by res judicata several times over and, without giving Hart an opportunity to respond, ordered the district court clerk "to reject any further filings from Robert W. Hart which relate to the condemnation of property located at 930 Maple Drive, Morgantown, West Virginia, upon which the former Bob's Bake Shop was located."

2

While the district court has authority to enjoin litigants from subjecting the court system to frivolous, repetitive and vexatious filings, it must not issue such an order sua sponte without first giving the litigant notice and an opportunity to be heard. See Tripati v. Beaman, 878 F.2d 351 (10th Cir.1989); Charlton v. Estate of Charlton, 841 F.2d 988 (9th Cir.1988); In re Oliver, 682 F.2d 443 (3d Cir.1982); Matter of Hartford Textile Corp., 613 F.2d 388 (2d Cir.1979). Accordingly, we vacate that part of the order enjoining Hart from further filings and remand for notice and an opportunity to be heard on the propriety of the injunction.

3

In all other respects, we find that this appeal is without merit, and we affirm on the reasoning of the district court. West Virginia Dep't of Highways v. Hart, CA-89-99-C (N.D.W.Va. Mar. 27, 1990). We grant leave to appeal in forma pauperis and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

4

AFFIRMED IN PART, VACATED IN PART, AND REMANDED