Tamburro v. City of East
Case Date: 12/18/1992
Court: United States Court of Appeals
Docket No: 92-1321
|
December 18, 1992 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 92-1321 ALFRED W. TAMBURRO, Plaintiff, Appellant, v. CITY OF EAST PROVIDENCE AND STATE OF RHODE ISLAND, Defendants, Appellees. ____________________ No. 92-1322 ALFRED W. TAMBURRO, Plaintiff, Appellant, v. STATE OF RHODE ISLAND, Defendant, Appellee. ____________________ No. 92-1323 ALFRED W. TAMBURRO, Plaintiff, Appellant, v. RHODE ISLAND DEPARTMENT OF CORRECTIONS, Defendant, Appellee. ____________________ No. 92-1324 ALFRED W. TAMBURRO, Plaintiff, Appellant, v. RHODE ISLAND SUPREME COURT, Defendant, Appellee. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Ernest C. Torres, U.S. District Judge] ___________________ ____________________ Before Torruella, Cyr and Stahl, Circuit Judges. ______________ ____________________ Alfred W. Tamburro on brief pro se. __________________ James E. O'Neil, Attorney General, and Terence J. Tierney, _________________ ____________________ Special Assistant Attorney General, on brief for appellee State of Rhode Island. William J. Conley, Jr., City Solicitor, on brief for appellee _______________________ City of East Providence. ____________________ ____________________ Per Curiam. Plaintiff Alfred Tamburro appeals from a __________ judgment of the district court dismissing his complaints in these four consolidated cases for failure to state a claim. We find no error and therefore affirm. The district court, without objection from plaintiff, construed the complaints as setting forth claims for damages under 42 U.S.C. 1983 for, inter alia, unlawful arrest and __________ detention and malicious prosecution. Plaintiff now advances two issues on appeal. First, he contends that District Court Judge Torres erred in refusing to disqualify himself from these cases. He explains that Judge Torres, while a member of the Rhode Island Superior Court in 1985, was involved in one aspect of related litigation brought by plaintiff against some of the defendants here.1 Plaintiff asserts that, due to such involvement, Judge Torres is an unnamed "John Doe" defendant in one of the instant cases, although he is unable to identify which one. These circumstances, plaintiff argues, required Judge Torres' recusal. We disagree. 28 U.S.C. 455 provides that a judge "shall disqualify himself" when he "[i]s a party to the proceeding." Id. ___ 455(b)(5)(i). For the following reasons, we think the district court was justified in deeming this provision ____________________ 1. In connection with civil actions plaintiff filed against various government officials for "harassment," then-Superior Court Judge Torres is said to have denied him in forma _________ pauperis status, resulting in the dismissal of those actions. ________ -3- inapplicable here. First, the suggestion that Judge Torres is an unnamed defendant is simply too nebulous to render him a "party" for the purposes of 455--particularly given plaintiff's inability to specify in which case the judge allegedly occupies such status. Second, recusal would not have been mandatory under 455(b) even if Judge Torres had been a named defendant. In order to guard against "judge- shopping," "courts have refused to disqualify themselves under Section 455(b)(5)(i) unless there is a legitimate basis for suing the judge." Andersen v. Roszkowski, 681 F. Supp. ________ __________ 1284, 1289 (N.D. Ill. 1988), aff'd, 894 F.2d 1338 (7th Cir. _____ 1990) (table); see also, e.g., United States v. Pryor, 960 ________ ____ _____________ _____ F.2d 1, 3 (1st Cir. 1992) (suit against judge separate from case at bar; "It cannot be that an automatic recusal can be obtained by the simple act of suing the judge."); United ______ States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) ("A ______ _______ judge is not disqualified by a litigant's suit or threatened suit against him"); United States v. Grismore, 564 F.2d 929, _____________ ________ 933 (10th Cir. 1977) (same), cert. denied, 435 U.S. 954 ____________ (1978). And it cannot be disputed here that the actions of a state court judge in denying in forma pauperis status are __________________ protected by judicial immunity and thus provide no legitimate basis for 1983 liability. See, e.g., Pierson v. Ray, 386 ___ ____ _______ ___ U.S. 547, 553-55 (1967). -4- Nor did the district judge err in concluding that his prior involvement in the related state court proceedings did not give rise to circumstances "in which his impartiality might reasonably be questioned." 28 U.S.C. 455(a). This provision imposes an objective standard: whether a reasonable person knowing all the pertinent facts would harbor a reasonable doubt concerning the judge's impartiality. See, ___ e.g., United States v. Lopez, 944 F.2d 33, 37 (1st Cir. ____ ______________ _____ 1991). A decision not to recuse is reviewed for abuse of discretion. Id. "Only if the district court's decision to ___ sit 'cannot be defended as a rational conclusion supported by [a] reasonable reading of the record' will we insist upon disqualification." In re Allied-Signal, Inc., 891 F.2d 967, __________________________ 970 (1st Cir. 1989) (quoting In re United States, 666 F.2d ____________________ 690, 695 (1st Cir. 1981)) (emphasis deleted), cert. denied, ____________ 495 U.S. 957 (1990). Without more, the mere fact that Judge Torres was involved in plaintiff's state court proceedings falls well short of mandating recusal, particularly given the tangential and cursory nature of that involvement. Much the way a judge is not barred from hearing a federal habeas petition due to the fact that he presided at trial, see, ___ e.g., Gregory v. United States, 585 F.2d 548, 551 (1st Cir. ____ _______ ______________ 1978); Rule 4(a) of Rules Governing Proceedings Under 28 U.S.C. 2255; see also, e.g., Oen Yin-Choy v. Robinson, 858 ________ ____ ____________ ________ F.2d 1400, 1408 (9th Cir. 1988) (extradition judge need not -5- recuse himself in subsequent habeas proceeding), cert. _____ denied, 490 U.S. 1106 (1989), Judge Torres' involvement in ______ the earlier state court litigation provides no reasonable basis for questioning his impartiality. Second, plaintiff complains of the procedure employed by the magistrate-judge leading up to the recommendation that the complaints be dismissed. Plaintiff's argument rests in large part on an erroneous premise: contrary to his suggestion, the magistrate-judge's ruling of January 28, 1992, did not recommend a dismissal on the merits but simply consolidated the cases on a procedural basis. On January 30, a hearing was conducted at which the magistrate-judge voiced doubts as to the viability of plaintiff's complaints. Plaintiff failed to address these concerns either at the hearing or thereafter, and the recommendation that the cases be dismissed was issued two weeks later. Under these circumstances, we think plaintiff was given ample notice that his complaints were vulnerable to dismissal and given ample opportunity to amend them. See, e.g., Pavilonis v. King, 626 ___ ____ _________ ____ F.2d 1075, 1078 n.6 (1st Cir.), cert. denied, 449 U.S. 829 ____________ (1980). In any event, plaintiff filed no objection to the February 13 Report and Recommendation and so waived any argument in this regard. See, e.g., Davet v. Maccarone, 973 ___ ____ _____ _________ F.2d 22, 31 (1st Cir. 1992) ("Failure to raise objections to the Report and Recommendation waives the party's right to -6- review in the district court and those not preserved by such objection are precluded on appeal."). Affirmed. _________ -7- |