Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.william S. Sires, Jr., Plaintiff, Appellant, v. Michael v. Fair, et al., Defendants, Appellees, 107 F.3d 1 (1st Cir. 1997)

Appellant William Sires, an inmate in the Massachusetts prison system, appeals a district court order denying his motion to hold appellees in contempt for violation of a previous court order requiring that they use their best efforts to ensure that he receive proper medical care while in prison. Sires further alleges the district court erred in refusing to grant his request for discovery and the subpoena of witnesses. Sires also appeals a court order relieving his court appointed counsel of the duty of further representing him and refusing to appoint new counsel. Finally, Sires claims that the district court erred in ordering him not to "file any additional motions without prior authorization of this court." We affirm the district court on all claims, except that of the injunction.

The district court in the instant case held a lengthy hearing at which it heard testimony concerning the quality of Sires' health care. It then made a factual finding, supportable in the record, that, while that care had not been "optimal," appellees had nevertheless made a good faith effort to comply with the previous order. We have reviewed the record carefully and find no abuse of discretion in the court's denial of Sires' contempt motion.

Moreover, the record indicates that Sires suffered no prejudice from the district court's failure to grant his request for the production of documents and the issuing of subpoenas to witnesses.

Appointment of counsel in a civil proceeding is required only in "exceptional circumstances." DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). The record indicates that the issues at the contempt hearing were not complex and that Sires was well able to represent himself. Therefore, the court did not abuse its discretion in relieving Sires' court appointed counsel of the duty of further representation and refusing to appoint new counsel.

In respect to the injunction, federal courts do "possess discretionary powers to regulate the conduct of abusive litigants." Cok v. Family Court of Rhode Island, 985 F.2d 32, 34 (1st Cir. 1993). Accordingly, "in extreme circumstances involving groundless encroachment upon the limited time and resources of the court and other parties, an injunction barring a party from filing and processing frivolous and vexatious [motions] may be appropriate." Castro v. United States, 775 F.2d 399, 408 (1st Cir. 1984). Nevertheless, any bar must be "narrowly tailored." Sires v. Gabriel, 748 F.2d 49, 51 (1st Cir. 1984), lest it "impermissibly infringe upon a litigator's right of access to the courts," Castro, 775 F.2d at 410. Such an injunction must "remain very much the exception to the general rule of free access to the courts" and must be used with particular caution against a pro se plaintiff. Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir. 1980). This court reviews entry of such injunctions for abuse of discretion. Id. at 408.

The injunction in this case is more problematic. Sires was not "warned or otherwise given notice that filing restrictions were contemplated," Cok, 985 F.2d at 35; he had not been afforded "an opportunity to respond" before entry of the injunction, see id.; and there was no request from the defendants for such an order, see Pavilonis, 626 F.2d at 1079 ("Generally, this kind of order should not be considered absent a request by the harassed defendants."). While no one of these factors, standing alone, would necessarily invalidate the injunction, they are fatal here because it is unclear that the record supports the injunction. Denial of routine access to the courts is an "extreme" measure, and "[l]itigiousness alone will not support [such] an injunction." Id. Here, however, the district court made no findings that Sires' filings had been frivolous, vexatious, or otherwise of a type and kind that would justify injunctive relief. Therefore, the fairest course here is to vacate the injunction and remand the case for such further proceedings, if any, as the district court desires to undertake.

Affirmed in part, vacated in part, and remanded.