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USCA1 Opinion
December 18, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1321
ALFRED W. TAMBURRO,
Plaintiff, Appellant,
v.
CITY OF EAST PROVIDENCE AND
STATE OF RHODE ISLAND,
Defendants, Appellees.
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No. 92-1322
ALFRED W. TAMBURRO,
Plaintiff, Appellant,
v.
STATE OF RHODE ISLAND,
Defendant, Appellee.
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No. 92-1323
ALFRED W. TAMBURRO,
Plaintiff, Appellant,
v.
RHODE ISLAND DEPARTMENT OF CORRECTIONS,
Defendant, Appellee.
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No. 92-1324
ALFRED W. TAMBURRO,
Plaintiff, Appellant,
v.
RHODE ISLAND SUPREME COURT,
Defendant, Appellee.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Torruella, Cyr and Stahl,
Circuit Judges.
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Alfred W. Tamburro on brief pro se.
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James E. O'Neil, Attorney General, and Terence J. Tierney,
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Special Assistant Attorney General, on brief for appellee State of
Rhode Island.
William J. Conley, Jr., City Solicitor, on brief for appellee
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City of East Providence.
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Per Curiam. Plaintiff Alfred Tamburro appeals from a
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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
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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.
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455(b)(5)(i). For the following reasons, we think the
district court was justified in deeming this provision
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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
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pauperis status, resulting in the dismissal of those actions.
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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.
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1284, 1289 (N.D. Ill. 1988), aff'd, 894 F.2d 1338 (7th Cir.
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1990) (table); see also, e.g., United States v. Pryor, 960
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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
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States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) ("A
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judge is not disqualified by a litigant's suit or threatened
suit against him"); United States v. Grismore, 564 F.2d 929,
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933 (10th Cir. 1977) (same), cert. denied, 435 U.S. 954
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(1978). And it cannot be disputed here that the actions of a
state court judge in denying in forma pauperis status are
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protected by judicial immunity and thus provide no legitimate
basis for 1983 liability. See, e.g., Pierson v. Ray, 386
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U.S. 547, 553-55 (1967).
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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,
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e.g., United States v. Lopez, 944 F.2d 33, 37 (1st Cir.
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1991). A decision not to recuse is reviewed for abuse of
discretion. Id. "Only if the district court's decision to
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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,
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970 (1st Cir. 1989) (quoting In re United States, 666 F.2d
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690, 695 (1st Cir. 1981)) (emphasis deleted), cert. denied,
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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,
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e.g., Gregory v. United States, 585 F.2d 548, 551 (1st Cir.
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1978); Rule 4(a) of Rules Governing Proceedings Under 28
U.S.C. 2255; see also, e.g., Oen Yin-Choy v. Robinson, 858
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F.2d 1400, 1408 (9th Cir. 1988) (extradition judge need not
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recuse himself in subsequent habeas proceeding), cert.
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denied, 490 U.S. 1106 (1989), Judge Torres' involvement in
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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
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F.2d 1075, 1078 n.6 (1st Cir.), cert. denied, 449 U.S. 829
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(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
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F.2d 22, 31 (1st Cir. 1992) ("Failure to raise objections to
the Report and Recommendation waives the party's right to
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review in the district court and those not preserved by such
objection are precluded on appeal.").
Affirmed.
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Document Info
Docket Number： 92-1321
Filed Date： 12/18/1992
Precedential Status： Precedential
Modified Date： 3/3/2016