USCA1 Opinion

April 11, 1995

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1480
DENNIS SIROIS,
Plaintiff, Appellant,
v.
MAINE STATE PRISON, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
____________________
Dennis Sirois on brief pro se.
_____________

____________________
____________________

Per Curiam.
__________
pursuant

to

Dennis Sirois

28 U.S.C.

1915(d)

alleging constitutionally
suit under 42 U.S.C.

appeals the

of

his pro
___

dismissal

se complaint
__

deficient medical treatment.

His

1983 -- against the prison entity, its

warden and deputy warden, a medical administrator, a John Doe

nurse,

and the entire medical staff at the prison -- alleged

various instances

of failure

Specifically, Sirois claimed

treat

an

medication

abscess

that

administered on

to provide

medical treatment.

that the defendants refused

resulted
March

from
2, 1994.

an

injection
The

to
of

complaint

sought declaratory and injunctive relief, as well as monetary

damages.

The magistrate-judge recommended that the complaint

be dismissed as frivolous.
court

adopted the

Sirois objected, but the district

recommended

decision

and dismissed

the

complaint.
Although
dismissing the
Sirois'

the

claims

are

the basis that

Inv. Co. v.
_________

court

may

have erred

complaint as frivolous under

at

Williams, 490 U.S. 319,

________
on

district

least

arguable,

in

1915(d) since
see
___

Neitzke
_______

v.

327-28 (1989), we nonetheless affirm

the error was

Commissioner, 311
____________

harmless.
U.S. 55,

See J.E. Riley

___ __________

59 (1940);

Doe v.
___

Anrig, 728 F.2d 30, 32 (1st Cir. 1984).

_____
To state a cognizable Eighth Amendment
on

medical mistreatment,

omissions

sufficiently

"a

prisoner must

harmful

to

claim based

allege acts

evidence

or

deliberate

indifference to
429 U.S.
us that

serious medical needs."

97, 106 (1976).

Sirois has not

Estelle v. Gamble,
_______
______

Our review of the record satisfies

alleged medical needs

of sufficient

seriousness to warrant Eighth

Amendment scrutiny.

Hudson v.
______

McMillian,
_________

1000

condition

suffered

112

S. Ct.

as a result of

relatively minor.
Sirois
well

There

995,

(1992).

The

the injection appears

are no

to have been

allegations of fever,

and

was vague about the severity and duration of pain, as

as

the

number of

treatment

acknowledged that the condition

of this
treating

requests

decision as

objections

to

the

satisfaction.

magistrate's

amendments, we are persuaded

is

Even

recommended

that the complaint

failed to state a cognizable Eighth Amendment claim.

Affirmed.
Affirmed.
________

It

was treated after the filing

complaint, seemingly to Sirois'

his

made.

-3-

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________

No. 94-2172

CMM CABLE REP., INC.,

d/b/a CREATIVE MEDIA MANAGEMENT, INC.,

Plaintiff, Appellant,

v.

OCEAN COAST PROPERTIES, INC.,

d/b/a WPOR-FM, ET AL.,

Defendants, Appellees.

_________________________

-4-

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

___________________

_________________________

Before

Selya, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________

and Stahl, Circuit Judge.

_____________

_________________________

Anne S. Mason, with whom Mason & Assocs., P.

______________
____________________
A.,
__

John H. Rich III, William Sheils, and Perkins, Thompson,

________________ ______________
__________________

Hinckley & Keddy were on brief, for appellant.

________________
James G. Goggin,
_______________

with whom Roy S. McCandless

__________________

and Verrill & Dana were on brief, for appellees.

______________

_________________________

-5-

March 6, 1995
_________________________

-6-

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________
plaintiff below, appeals from
preliminary
copyright

injunctive
infringement,

competition.1

CMM Cable Rep., Inc. (CMM),

the district court's denial of

relief

associated

with

trademark infringement,

claims

of

and unfair

We dismiss the appeal as moot.

I
I

Because this case turns

principally on its present

procedural posture, we do no more than skim the facts.

CMM

does

"Creative

Media

strategies

to

retaining

business under
Management."

assist

listeners.

radio
CMM

the
It

name
devises

stations
claims

in
to

have

trademarked the

name and

of

promotional

acquiring

promotional contest called "PAYROLL PAYOFF ."

it

and style

created

and
a

In due season,

copyrighted various

materials

designed

for

use in

featured

the contest.

executing
The

promotional

campaigns that

mechanics of PAYROLL PAYOFF

are

not relevant to the mootness issue, and rehearsing them would

serve no useful purpose.2

____________________
1. In point of fact, the district court did not deny CMM's
motion for preliminary injunction outright, but granted a
small measure of relief.
On appeal, CMM complains that the
court gave it considerably less than its due, drawing the
injunction in much too crabbed a fashion.
2. We refer readers who thirst for greater knowledge to a
more
detailed account of
the PAYROLL PAYOFF
concept
contained
in
CMM
Cable
Rep.,
Inc.
v.
Keymarket
___________________________
_________
Communications, Inc., 870 F. Supp. 631, 633-34 (M.D. Pa.
_____________________
1994).
-77

CMM
promotion

unsuccessfully

to radio station

Portland, Maine, market.

WPOR,3 tried to

pitched

the

PAYROLL

WMGX, its regular

client in the

Subsequently, a competing

acquire the right

PAYOFF

station,

to run the contest.

CMM

refused to

deal out

matters into its

contest-type

of loyalty

to WMGX.

own hands and "created"

promotion,

PAYROLL PAYOFF , called

reminiscent
"PAYDAY."

in

WPOR then

took

(or so it says)
some

respects

WPOR began

a
of

broadcasting

its PAYDAY contest in the fall of 1994.

II
II
Unconsoled by
sincerest form of
district

court

the bromide

that

imitation is

flattery, CMM brought suit

charging,

among

other

the

in the federal

things,

copyright

infringement, trademark infringement, and unfair competition.

CMM's complaint prayed,

inter alia,
_____ ____

remedies, and attorneys'

both

temporary and

fees.

In

preliminary

for damages,

equitable

addition, CMM moved

injunctive relief

to

for
halt

WPOR's use of the PAYDAY contest pendente lite.

________ ____
The

district court

restraining order.
and,

on

November 4,

refused to

Instead, it held
1994,

granted

issue

a temporary

an evidentiary hearing
a limited

preliminary

____________________
3. Defendant Ocean Coast Properties, Inc. operates WPOR
(sometimes referred to by plaintiff as WPOR-FM). Defendants
Robert Gold, Phillip Corper, and William Therriault are all
interested in the station's operation.
For simplicity's
sake, we refer to the defendants, collectively, as "WPOR" or
"appellees."
-88

injunction prohibiting further production and distribution of

the

brochures that

PAYDAY

scheme.4

WPOR had
The

court

proceeding with the contest

prepared

to help

refused

to enjoin

promote its
WPOR

from

proper, however, ruling that CMM

had shown scant prospects of success on its principal claims.

This appeal ensued.
While
moved

to

support,

the appellate

dismiss the
it averred

course, and was no

the proposed
was

off

appeal on
that

grounds

the PAYDAY

underway,
of mootness.

contest

had run

WPOR
In
its

CMM

objected to

Though admitting that

the contest

CMM asserted

fairly be characterized
heard arguments

was

longer being broadcast.

dismissal.

the air,

process

that

as moot.

spanning both

its appeal

On February

the question of

could not

9, 1995,

we

mootness and

the merits of the appeal.

III
III
A
jurisdiction

federal

appellate

over actual

Const. art. III,

2,

court

may

only

exercise

"cases" or "controversies."

cl. 1.

The instant appeal

U.S.

provides

this court with no live controversy to resolve, and, thus, we

lack appellate jurisdiction.

This

is an

We explain briefly.

interlocutory appeal.

It

is brought

strictly and solely to test whether the district court abused

____________________
4. The court determined that CMM would probably succeed in
showing that the brochures infringed existing copyrights.
-99

its
The

discretion
relief

injunction.

in withholding

sought

is

in

The purpose of

the

certain

provisional relief.

nature

of

preliminary

a preliminary injunction

is to

preserve the status quo, freezing an existing situation so as

to

permit the

case's merits,
See Chalk v.
___ _____
(9th

trial court,

upon full

adjudication of

more effectively to remedy

discerned wrongs.

United States Dist. Court, 840

__________________________

Cir. 1988); American Hosp. Ass'n

_____________________

1328, 1330 (7th Cir.

1980).

decree attempts to prevent

the

F.2d 701,

v. Harris,
______

The court's interim

704

625 F.2d
injunctive

further injury by maintaining the

status quo,

cf. Narragansett Indian Tribe v.

___ __________________________

F.2d

(1st

4,

irreparable
granting

Cir. 1991)

injury"

of a

standard

the

if it ultimately

harmful

effects of

"potential

prerequisite

preliminary injunction),

court's ability,
minimize the

as

(listing

Guilbert, 934
________

for

the

thus enhancing

the

finds for the

the

for

movant, to

defendant's

wrongful

conduct.
The appealability of orders
modifying, refusing or
28 U.S.C.
Indeed,

dissolving" preliminary

injunctions,

1292(a)(1), fits hand-in-glove with this purpose.

the impetus

"final judgment"
order

"granting, continuing,

refusing

behind the

statutory exception

rule that allows an immediate

a

preliminary

irreparable harm to a

injunction

is

to the

appeal of an
to

prevent

litigant who, otherwise, might triumph

at trial but be left holding an empty bag.

-1010

See United States

___ _____________

v.

Cities Serv. Co.,

_________________

Pyrrhic victories,
eyes

of prevailing

public's perception
follows that,

410 F.2d

after all,

662,

are often cold

parties

and do

of the

judicial

when this

664 (1st

little

Cir. 1969).
gruel in

the

to burnish

the

system.

We think

it

harm-preventing function cannot

be

effectuated by the successful prosecution of an interlocutory

appeal from the denial of interim injunctive relief, then the
viability of the appeal itself is called into question.

See,
___

e.g., Bank of N.Y. Co.

____ _________________

F.3d

v. Northeast Bancorp, Inc., 9

________________________

1065, 1067 (2d Cir. 1993).

finished
enjoin

Such a configuration exists here.

Because WPOR has

airing its

appeal seeks

contest, this

an event that has already fully occurred.

that we might
and either
act or

PAYDAY

issue can turn back the pages

stop the

commission of the

fully palliate

its effects.

to

No mandate

of the calendar

allegedly infringing
Though federal

courts

possess great authority, they lack the power, once a bell has
been

rung,

to

unring

no

justiciable

appeal can no

longer serve

harm-preventing function, or, put

another way,

controversy exists
the intended

from an

In

because this

this court, within the

appeal

it.

short,

isthmian confines of an interlocutory

order refusing to

restrain a

now completed

act, has no effective relief to offer.

Our analysis

finds ample support in

the case law.

It has been common ground throughout the last century that an

-1111

appeal, although live

when taken,

subsequent developments.
653 (1895).

may be

See Mills v. Green, 159

___ _____
_____

for a preliminary injunction is

the

sought to

U.S. 651,

be enjoined

has

rendered moot when

occurred."

Mercedes-Benz of North Am., Inc., 3 F.3d 522, 524

_________________________________
1993); accord Bank of N.Y.,
______ _____________
Corp. v. FDIC, 986 F.2d
_____
____
these

by

More specifically, "an appeal from the denial of

a motion
act

rendered moot

9 F.3d at

McLane v.
______
(1st Cir.

1067; Oakville Dev.

______________

611, 613 (1st Cir. 1993).

Based on

precedents, it appears that CMM's appeal is moot.

See
___

Bank of N.Y., 9 F.3d at 1067 (explaining that an appeal from

_____________
the

denial of a motion for preliminary injunction is moot if

the

appellate

court can

no

longer

preserve, or

feasibly

restore, the status quo); Oakville, 986 F.2d at 613

________

(holding

that a

case is moot upon the inability of a court to provide

effective relief in respect to the claim before it).

We emphasize that appellant's suit

in the district court.
is not moot

money damages,

not rendered

conduct.

suit itself

requested is attainable;

prevails, the district court

attorneys' fees, and other

A suit that seeks

is

Unlike this appeal, the

because the relief

appellant ultimately

remains pending

by the

cessation

can award

effective relief.

damages for harm caused by

moot

if

past practices

of the

challenged

See Curtis Indus., Inc. v. Livingston, 30 F.3d 96,

___ ___________________
__________

97-98 (8th

Cir. 1994) (explaining that

a judgment declaring

-1212

an appeal of
does

a ruling

anent a

preliminary injunction

moot

not preclude the district court from proceeding to hear

and determine a

claim for

conduct); Trane Co.

_________

damages arising out

v. O'Connor Sec., 718 F.2d

______________

of the
26, 27

same
(2d

Cir.

1983)

(dismissing

injunction as

appeal from

moot "[e]ven though

denial

of preliminary

issues may

remain for

trial on the merits").

IV
IV
Appellant explores
detour

around the

two

barrier of

avenues in

its effort

nonjusticiability.

to

Both are

blind alleys.
First, appellant asseverates that

the harm it

has

experienced may simply be in a state of temporary

remission.

It

infringing

posits that

WPOR,

having run

contest once, may

do so again,

frame skillfully,

may

the allegedly

and, if it chooses

continue to

dodge appellate

its time
review.

The asseveration cannot withstand scrutiny.

To be sure, the
the

wrong

sought

demonstrated

to

be

likely recurrence or repetition of

enjoined,

when

coupled

with

tendency to elude review, forms the basis for a

recognized exception to the application of the mootness rule.

See
___

Oakville,
________

986

F.2d

at

615;

see
___

also
____

Southern Pac.
_____________

Terminal Co. v. ICC, 219 U.S. 498, 515 (1911) (holding that a
____________
___
case

is not

moot

repetition, yet

if

the

alleged

evading review").

-1313

wrong

is

But, here,

"capable

of

appellant's

attempt to invoke this exception lacks at least one necessary

ingredient.5

It

is not

enough

that a

could, theoretically, happen again.

consummated

event

Rather, for an event to

be "capable of repetition" in the requisite sense, there must

be

a reasonable

expectation

States v. Peters, 754

______
______

of reoccurrence.

F.2d 753, 758 (7th Cir.

See
___

United
______

1985); Trane,
_____

718 F.2d at 27.

This is not such
argument,
refrain

which,

district

When questioned

appellees' counsel stated

from revivifying

case

a case.

as we

court,

flatly that

its contest

have said,

see supra
___ _____

p.7

has

WPOR would

until after

is awaiting

at oral

the main

trial in

the

been concluded.

We

consider an express representation by an officer of the court

to be a solemn undertaking, binding on the client, cf., e.g.,
___ ____
United States v.
_____________
(refusing to
from his
that

it

Coady, 809
_____

countenance

F.2d 119, 121

a defendant's

(1st Cir.

attempt to

attorney's express representation),

will

be

honored.

Given

the

and we

1987)
retreat
expect

stand-still

representation,

the potential for reoccurrence or repetition

of the allegedly wrongful acts is far too exiguous to support

continued appellate jurisdiction.
Appellant's second attempted detour need not detain
us.

CMM contends that

the possibility of

effective relief

____________________
5. We take no view of whether appellant's
the "evading review" prong of the exception.

claim satisfies

-1414

exists

notwithstanding

anchors this contention

could

still

benefits

of

enjoin
the

presumably acquired
contest.
need

the end

of

WPOR's

promotion.

on the idea that the

WPOR

pendente lite
________ ____

increased

listener

through its

from

district court
reaping

database

exploitation of the

that

its two most

first place, CMM never

noticeable flaws.

the
it

PAYDAY

There are several problems with this argument.

not go beyond

It

We

In the

requested this specific relief during

the preliminary injunction proceedings in the district court.

Consequently, its argument founders.

to

ask the trial court

for relief that

have thought would be available

the court of

appeals to

neglects

it might reasonably

is not entitled to importune

grant that relief.

Review v. Dartmouth Coll.,

______
_______________
Beaulieu
________

A party who

See
___

889 F.2d 13, 22 (1st

Dartmouth
_________
Cir. 1989);

v. United States IRS, 865 F.2d 1351, 1352 (1st Cir.

_________________

1989); see generally Clauson v. Smith, 823 F.2d 660, 666 (1st
___ _________ _______
_____
Cir.

1987)

(holding

that

theories not

developed

in

the

district court cannot be raised for the first time on appeal)

(collecting cases).
In all

events, even

would be unavailing.

were the point

If CMM prevails on the

increase in listenership conceivably

unjust

enrichment,

disgorgement.
more, rarely

calling for

constitutes an

adequate

-1515

merits, WPOR's

may represent a form of

damages

But an entitlement to

preserved, it

in

the nature

of

money damages, without

basis for

injunctive

relief.

In

injunction

particular,

requires a

movant rather
______

than to

circumstances

of

acquired

issuance

showing

of

preliminary

of irreparable

harm to
__

one or

more third

parties.

case,

WPOR's use

of

this

database

the

would

not

conduct harms only other

meet this

In the

wrongfully

benchmark.

radio stations

the
___

Such

WPOR's competitors

not CMM itself.

V
V
We need go no
below

a more

further.

sweeping

feasibly be granted under

obtain, this

appeal no

The

is

appeal

jurisdiction to
not,

moot

Because the relief

preliminary

injunction

sought
cannot

the changed circumstances that now

longer presents a

and,

therefore,

reach the merits.6

live controversy.
this

court

lacks

Appellate tribunals are

and should not be, in the surreal business of rendering

advisory opinions.

Appeal dismissed.
Appeal dismissed.
________________

Costs in favor of appellees.

Costs in favor of appellees.
___________________________

____________________
6. We express no opinion either on the merits of the order
appealed from or on the issues that remain to be tried in the
lower court.
-1616