Shapiro v. Roger Williams University et al

Filing 156

ORDER denying 153 Motion for Transcripts... -- So Ordered by Chief Judge Mary M. Lisi on 11/29/2012. (A copy of the instant order was forwarded to Plaintiff via first-class mail to Plaintiff's California address as it appears on the docket.) (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
JOSHUA BARRETT SHAPIRO,
Plaintiff
v.

C.A. No. 011-140-ML

ROGER WILLIAMS UNIVERSITY, et al.,
Defendants
ORDER
I. Background and Procedural History
This case1 was dismissed on August 17, 2012 (Docket ## 147,
148) when this Court granted four separate motions for sanctions
and

dismissal

(Docket

##

112,

126,

127,

132)

filed

by

the

defendants (“RWU”). In the dismissal order, the Court made several
findings

in

determining

that

dismissal

with

prejudice

was

warranted, i.e., that the plaintiff failed to provide answers to
RWU’s interrogatories, to produce documents as requested by RWU,
and to appear at his own deposition, all in violation of separate
orders issued by the assigned Magistrate Judge (Docket ## 104, 108,
114). The Court also noted that the plaintiff, Joshua Barrett
Shapiro (“Shapiro”) had been given free access to PACER, which
provided him with unlimited access to any court filings in the case

1

The facts of the case and the circumstances of the litigation
have been repeatedly recounted in some detail. See, e.g. Shapiro
v. Roger Williams University, C.A. No. 011-140-ML, 2012 WL 1565282
(D.R.I. April 30, 2012); Shapiro v. Roger Williams University, C.A.
No. 011-140, 2012 WL 3581148 (D.R.I. August 17, 2012).
1

without incurring costs. In addition, RWU made concerted efforts to
mail copies of all its submissions to Shapiro, which was made more
difficult by Shapiro’s continued false representation that he lived
in California instead of Virginia where he actually resides. Most
significant to the Court’s determination as to the instant motion,
Shapiro raised no objections to RWU’s motions to dismiss the case.
With respect to RWU’s motions, the Court concluded that “in
view of Shapiro’s continuous and flagrant misconduct in the course
of this litigation, including making misrepresentations to the
Court,” dismissal with prejudice was appropriate. Shapiro v. Roger
Williams University, 2012 WL 3581148 at *9.

After the case was

dismissed, Shapiro filed a timely appeal to the U.S. Court of
Appeals for the First Circuit. (Docket # 149). The record on
appeal, including the original file, a certified copy of this
Court’s docket, and Shapiro’s notice of appeal, was transferred to
the First Circuit on September 11, 2012. (Docket # 151,152).
II. Shapiro’s Motion
The matter is now before the Court on Shapiro’s
“REQUEST FOR TRANSCRIPTS AND/OR TRANSCRIPTS OF ANY AUDIO
RECORDING OF ANY HEARINGS, MOTIONS, CONFERENCES, EX PARTE
HEARINGS/MOTIONS/CONFERENCES, AND/OR OTHER PROCEEDINGS.”
(Docket # 153).
In addition to transcripts of the audio recordings2 in this
2

Proceedings before the Magistrate Judge are audio-recorded; a
transcript is prepared only if it is ordered by a party, generally
at that party’s expense.
2

case, Shapiro seeks to be provided with all “tangible items” set
forth in a on-and-a-half page list, including diaries, calendars,
appointment books, studies, working papers, statistics, intraoffice communications, telephone message slips, ledgers, financial
disclosures, computer thumb drives, etc.

Shapiro Mot. 2 (Docket #

153). Shapiro also requests that a “courtesy copy for review and
consideration” be furnished to the First Circuit.
Shapiro represents that, upon contacting the First Circuit, he
was “referred to this court to obtain these records without cost or
expense.”

Id. at 1. Shapiro also notes that, on April 5, 2011,

he

filed a motion for leave to proceed in forma pauperis, (Docket # 2)
that was granted by Magistrate Judge Martin on [May] 12, 2011.(Text
Order May 12, 2011).3 At the time Shapiro filed his initial request
to proceed in forma pauperis, he represented that he was unemployed
and received social security disability payments as his only
income. (Docket # 2). In support of that request, Shapiro provided
a letter from the Social Security Administration confirming that he
was receiving supplemental social security income. (Docket 2-1).
Regarding the instant motion, Shapiro represents that his “income
remains social security disability as his sole source of income”
and that he is “unable to afford or to satisfy payment for his

3

As reflected on the Appellate Court Docket, the First Circuit
took notice on October 10, 2012 that Shapiro’s request to proceed
in forma pauperis was granted by this Court on May 12, 2011.
3

request.”

Shapiro Mot. 5.

On November 9, 2012, RWU filed a response in opposition to
Shapiro’s motion based on Rule 24 of the Federal Rules of Appellate
Procedure.4 (Docket # 154).

RWU noted that Shapiro sought a

“laundry list of materials to which he is not entitled,” RWU’s
Response 1, and it suggested that Shapiro’s appeal was not taken in
good faith, therefore precluding him from proceeding in forma
pauperis. Id.
In his reply (Docket #155), Shapiro points out that RWU had
previously sought to dismiss his appeal for want of diligent
prosecution (Shapiro had failed to submit a docketing statement,
fee and appearance form within the time limit set by Rule 3.0 of
the First Circuit Local Rules), but that the First Circuit had
dismissed RWU’s motion.5
III. Discussion
Pursuant
Procedure,

to

“[a]

Rule
party

24

of

the

who was

Federal

permitted

Rules
to

of

Appellate

proceed

in forma

pauperis in the district-court action . . . may proceed on appeal
in forma pauperis without prior authorization, unless . . . the
district court - before or after the notice of appeal is filed -

4

RWU’s motion erroneously references the Federal Rules of Civil
Procedure.
5

RWU’s motion was denied as moot. Shapiro does not attempt to
clarify how RWU’s prior motion is relevant to his instant request.
4

certifies that the appeal is not taken in good faith or finds that
the party is not otherwise entitled to proceed in forma pauperis
and states its reasons for the certification or finding.” Fed. R.
App. P. 24(a)(3)(A).
“The ‘good faith’ requirement is designed ‘to ensure that
judicial and public resources are not expended needlessly on an
appeal which has no basis in law or fact’.” Lyons v. Wall, C.A. No.
04-380-T, 2007 WL 2067661 at *1 (D.R.I. July 13, 2007)(internal
citation omitted). As such, “[t]he good faith standard is an
objective one, and an appeal is considered not taken in good faith
if the appeal seeks review of issues that are frivolous.” Laurence
v. Wall, C.A. No. 08-109-ML, 2009 WL 1657590 at * 1 (D.R.I. July
11, 2009)(citing Coppedge v. United States, 369 U.S. 438, 445, 82
S.Ct. 917, 8 L.Ed.2d 21 (1962)). “An appeal is deemed frivolous
when it is based on an ‘indisputably meritless legal theory or
factual allegations that are clearly baseless.’” Laurence v. Wall,
C.A. No. 08-109, 2009 WL 1657590 at *2 (quoting Forte v. Sullivan,
935 F.2d 1, 3 (1st Cir. 1991)).
Shapiro seeks to appeal the dismissal of his case by this
Court. It is undisputed, however, that Shapiro elected not to
object to any of RWU’s motions which sought dismissal of this case.
As this Court has previously noted, although Shapiro is not an
attorney, it is evident from his verbose and frequent submissions
that he has had some legal training. Particularly, Shapiro has

5

repeatedly demonstrated that he is well acquainted with the Federal
Rules of Civil Procedure. His pro se status does not “absolve him
from compliance with the Federal Rules of Civil Procedure.” United
States v. Heller, 957 F.2d 26, 31 (1st Cir. 1992). Because Shapiro
never objected to RWU’s motions to dismiss, any arguments he may
intend to raise on appeal with respect to that dismissal have been
waived. See e.g., Davis v. Lucent Tech., Inc., 251 F.3d 227, 232
(1st Cir. 2001)(re-emphasizing that “‘[n]o precept is more firmly
settled in this circuit than that theories not squarely raised and
reasonably propounded before the trial court cannot rewardingly be
advanced on appeal.’”)(quoting Lawton v. State Mut. Life Assurance
Co., 101 F.3d 218, 222 (1st Cir. 1996)).
Moreover, the voluminous record of this case reveals no less
than seven instances of serious misconduct by Shapiro, all of which
resulted in additional, costly, and often wasted efforts on RWU’s
part to defend itself in this litigation. Inter alia, Shapiro
continued to represent the address of his father’s California law
office as his own and insisted that all documents related to this
litigation be sent there, when in reality, he is a resident of
Virginia. Shapiro also attempted to convince this Court that RWU’s
counsel had failed to confer with him prior to filing a motion for
protective order; the Magistrate Judge found that defense counsel
had,

in

fact,

conferred

with

Shapiro.

Shapiro

continuously

disobeyed orders of the Court by not providing discovery documents

6

and failing to appear at his own scheduled deposition. Shapiro’s
conduct

served

to

delay

the

process

of

litigation,

cause

unnecessary expense to RWU, and put a strain on the Court’s limited
resources.
In addition, although Shapiro’s initial motion to proceed in
forma pauperis was granted, the Magistrate Judge expressed some
doubt in the course of the litigation that Shapiro had accurately
represented his economic situation. Shapiro represented that his
entire income was limited to social security disability payments,
which were used entirely for rent and food. Nevertheless, Shapiro
did travel to Rhode Island to attend two hearings in this case for
which he purchased airline tickets; he also purchased a third
ticket

which

he

then

returned

because

he

was

permitted

to

participate by telephone.
In sum, Shapiro’s conduct in this litigation compels this
Court to conclude that Shapiro’s appeal is taken in bad faith for
the purpose of harassing RWU rather than to redress his alleged
injuries.

With

respect

documents

in this

to

case,

all

the

pleadings

record on

and

other

submitted

appeal

was

previously

transferred to the First Circuit and Shapiro has access to all such
documentation

through

his

free

PACER

access.

For

all

of

foregoing reasons, Shapiro’s request for transcripts and other

7

the

materials at no expense based on his in forma pauperis status is
DENIED.

SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
Chief United States District Judge
November 29, 2012

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