Cowhig v. Togo West ( 1999 )

USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 98-1705



                        EDWARD D. COWHIG,



                      Plaintiff, Appellant,



                                v.



                TOGO WEST, SECRETARY OF THE ARMY,



                       Defendant, Appellee.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



             [Hon. Mark L. Wolf, U.S. District Judge]







                              Before



                     Torruella, Chief Judge,

                Campbell, Senior Circuit Judge,

                   and Lipez, Circuit Judge.









     Edward D. Cowhig on brief pro se.

     Donald K. Stern, United States Attorney, and Michael J.

Pineault, Assistant U.S. Attorney, on brief for appellee.











April 2, 1999











              Per Curiam.  Having scrutinized the record and the

    parties' submissions, we affirm the order of dismissal and the

    injunction against further filings essentially for the reasons

    recited by the district court.  We add only the following

    comments.

        It is well established that courts have the power to issue

    injunctions "barring a party ... from filing and processing

    frivolous and vexatious lawsuits."  Gordon v. United States

    Dep't of Justice, 558 F.2d 618, 618 (1st Cir. 1977) (per

    curiam).  While such measures are "the exception to the general

    rule of free access to the courts," Pavilonis v. King, 626 F.2d

    1075, 1079 (1st Cir. 1980), the district court was justified

    here in concluding that injunctive relief was warranted.

    Plaintiff has now filed five meritless actions in the District

    of Massachusetts, and at least two others elsewhere, pertaining

    to the same incident--his 1962 discharge from the Army.  Where

    a litigant has demonstrated a "propensity to file repeated

    suits ... involving the same or similar claims" of a "frivolous

    or vexatious nature," a bar on further filings is appropriate.

    Castro v. United States, 775 F.2d 399, 409 (1st Cir. 1985) (per

    curiam); accord, e.g., Pavilonis, 626 F.2d at 1078 (noting that

    "plaintiffs bent on reopening closed cases" fit into "classic

    mold" for injunctive relief).

        Nor does the injunction here suffer from any of the

    deficiencies that have been cited in other cases.  Plaintiff

    was given ample "notice that filing restrictions were

    contemplated."  Cok v. Family Court of Rhode Island, 985 F.2d

    32, 35 (1st Cir. 1993) (per curiam).  The court made adequate

    findings demonstrating the need for an injunction, and the

    record was "sufficiently developed" to support those findings.

    Id.  And the injunction was "narrowly drawn to fit the specific

    vice encountered."  Castro, 775 F.2d at 410.  For example, it

    pertains only to filings in the local district court, brought

    against the United States or an agency or employee thereof,

    involving the 1962 discharge.  And it allows plaintiff, with

    leave of court, to make new filings upon a showing that they

    are not barred by res judicata.

        Filing restrictions are reviewed for abuse of discretion.

    See, e.g., id. at 408.  No abuse of discretion being apparent,

    the judgment is summarily affirmed.

        Affirmed.  See Loc. R. 27.1.