OpenJurist

101 F3d 685 McCarthy v. Meachum

101 F.3d 685

John J. MCCARTHY, Plaintiff-Appellant,
v.
Lawrence MEACHUM, Defendant-Appellee.

No. 95-2613.

United States Court of Appeals, Second Circuit.

May 29, 1996.

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.

Appearing for Appellant: John J. McCarthy pro se, Somers, Ct.

Appearing for Appellee: Richard T. Couture, Ass't Att'y Gen., Hartford, Ct.

D.Conn.

AFFIRMED IN PART, VACATED IN PART AND REMANDED.

Before KEARSE, WINTER and CALABRESI, Circuit Judges.

1

This cause came on to be heard on the transcript of record from the United States District Court for the District of Connecticut, and was submitted by plaintiff pro se and by counsel for defendant.

2

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed in part, and vacated and remanded in part.

3

Plaintiff John J. McCarthy, a Connecticut prisoner, appeals from a judgment of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, Judge, dismissing his complaint challenging the conditions of his confinement, and sua sponte enjoining him from future related filings in the district court without leave of the court. We affirm so much of the judgment as dismissed the complaint, substantially for the reasons stated in Judge Daly's Ruling on Pending Motions, dated August 22, 1995.

4

As to the district court's order prohibiting McCarthy, unless he obtains leave of the court, from filing in the future in the District of Connecticut any new lawsuit or any motion in an existing lawsuit challenging the conditions of his confinement, we vacate and remand for further proceedings because the court did not give McCarthy notice and an opportunity to be heard before entering its order. See, e.g., Board of Managers v. Bronkovic, 1996 WL 233138, at * 1 (2d Cir. April 30, 1996) ("district court may not enjoin, sua sponte, further filings of frivolous or vexatious claims without providing express notice and a hearing"); In re Hartford Textile Corp., 613 F.2d 388, 390 (2d Cir.1979) (same). Accordingly, the injunction order is vacated, and the matter is remanded so that the court may afford McCarthy an opportunity to be heard.

5

No costs.