Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1173

TRICIA L. RUBACKY,

Plaintiff, Appellant,

v.

MORGAN STANLEY DEAN WITTER CREDIT CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

 Boudin, Chief Judge,

Lipez and Howard, Circuit Judges.

Tricia L. Rubacky on brief pro se.

David M. Rosen and Harmon Law Offices, P.C., on brief for

appellee.

July 23, 2004
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Per Curiam. This is an interlocutory appeal from the

district court's denial of pro se plaintiff's motion to enjoin

defendant lender's foreclosure sale of plaintiff's home. Because

the sale has now occurred, plaintiff's request to enjoin the sale

has become moot, and she has failed to demonstrate the requisite

threat of immediate harm or the likelihood of success on the merits

to warrant any other preliminary injunctive relief. 

As we recently reiterated, where "[t]he posture of the

case has changed in significant ways since the plaintiff initially

made her motion for a preliminary injunction," the justiciability

of an interlocutory appeal from the denial of that motion "is

called into question." Matos v. Clinton Sch. Dist., 367 F.3d 68,

72 (1st Cir. 2004) (citing CMM Cable Rep., Inc. v. Ocean Coast

Props., Inc., 48 F.3d 618, 621 (1st Cir. 1995)). And, where, as

here, the event that plaintiff sought to enjoin--the January 2004

foreclosure sale--has already occurred, "this court lacks the power

to turn back the clock and, accordingly, . . . the appeal is moot."

Matos, 367 F.3d at 72. 

Although plaintiff's motion also sought to enjoin any

future foreclosure sale, there is no evidence that any future sale

has been or will be scheduled before the trial, which is scheduled

to occur this fall. In the absence of a real threat of immediate

and irreparable harm, the district court appropriately declined to

issue a preliminary injunction. Id. at 74 (affirming denial of
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preliminary injunction where claim for relief "lacks immediacy . .

. [and] record reflects no reason why that relief, if due, cannot

await a full-dress trial"). Also, to the extent that plaintiff's

present motion for preliminary injunctive relief was based on the

same grounds as her earlier one, there is little likelihood that

plaintiff will succeed on those grounds for the reasons stated by

the magistrate judge in his Report and Recommendation that the

earlier motion be denied. 

The district court also properly denied plaintiff's

request for injunctive relief against defendant's counsel,

prohibiting them "from conducting any foreclosure auctions within

the court's borders" until various actions are taken. As

recognized by the magistrate judge, defendant's counsel "are not

parties to this suit and the allegations [against them] provide no

basis for an injunction against the defendant."

The district court did not directly address plaintiff's

further request "[t]hat the court order Defendant to remove 'prays'

from all its documents in a religiously neutral way." We assume

that defendant uses the word "prayer" in the legal sense of a

"request addressed to the court and appearing at the end of a

pleading; esp., a request for specific relief or damages," Black's

Law Dictionary (8th ed. 2004), rather than in any religious sense.

Accordingly, the district court properly denied that request for

relief as well. For the above reasons, plaintiff's appeal from the
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district court's denial of her request to enjoin the sale that has

already occurred is dismissed as moot, and the district court's

denial of plaintiff's other requests for preliminary injunctive

relief is affirmed.