Kelly v. Weld ( 1992 )

USCA1 Opinion

          December 11, 1992     [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 92-1967 

                                   DANNY M. KELLY,

                                Plaintiff, Appellant,

                                          v.

                                   WILLIAM F. WELD,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. David S. Nelson, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                          Torruella and Cyr, Circuit Judges.
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            Danny M. Kelly on brief pro se.
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            Scott  Harshbarger,  Attorney General,  and  Eleanor Coe  Sinnott,
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        Assistant Attorney  General, on Memorandum  in Support  of Motion  for
        Summary Disposition, for appellee.


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                      Per Curiam.  Danny M. Kelly appeals from a district
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            court order  dismissing his  complaint.  Appellant  filed his

            complaint in July, 1991 against Governor William F. Weld, "in

            his role  as governor of the  Commonwealth of Massachusetts."

            The  complaint   alleged  that   appellant  was  denied   his

            constitutional rights in violation of 42 U.S.C.   1983 by the

            failure of a Massachusetts inspection station to grant him an

            inspection   sticker   for  his   1970   Oldsmobile.     More

            specifically, he claimed that  he had been denied his  rights

            of  free   expression,  enjoyment  of   his  property,  equal

            protection and  due process.    Appellant sought  injunctive,

            declaratory and compensatory relief and costs.

                      Appellee  moved to  dismiss.    The district  court

            referred the motion to a  United States Magistrate who issued

            two   reports  recommending   that  appellant's   claims  for

            compensatory relief  be dismissed  as barred by  the Eleventh

            Amendment  and  that  the   remainder  of  the  complaint  be

            dismissed for  failure to  state a  claim.   Appellant  filed

            objections  to  both  reports.   The  district  court, in  an

            opinion dated August 5,  1992 dismissed appellant's complaint

            for the  same reasons  expressed in the  magistrate's reports

            and denied appellant's motion  for injunctive relief to allow

            appellant  to operate  his car  without a  current inspection

            sticker.  For  the reasons  set forth in  the district  court

            opinion, we affirm.  We add only the following comments.
              


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                      Appellant,  in  his brief,  describes  his  case as
            follows:

                      [t]he    case    is   based    upon   the
                      Commonwealth's   refusal  to   provide  a
                      Certificate of Inspection for Appellant's
                      1970   Oldsmobile   during   its   yearly
                      required auto inspection even  though the
                      car  meets  all  specifications  required
                      under state and Federal law to be granted
                      a Certificate of Inspection.

            Appellant  admits later in his  brief, however, that after he

            filed his complaint in this case he obtained a certificate of

            inspection  for  his  car  from  another inspection  station.

            Therefore, appellant's request for injunctive relief is moot.

                      Moreover, the  fact  that  appellant  was  able  to

            obtain a certificate of inspection belies his claims that the

            Commonwealth has denied him  any rights whatsoever, much less

            any federal rights.   The essence of his complaint  is that a

            specific  inspection  station  erred  in denying  his  car  a

            certificate of inspection  when it allegedly  met all of  the

            inspection requirements.   Appellant complains  in his  brief

            that the district court failed to resolve the "main point" of

            whether  or not  the initial  inspection  station erroneously

            denied  his car  an inspection  certificate.   That question,

            however,  is  not one  over  which  the federal  courts  have

            jurisdiction.  

                      Finally,  appellant's claims  of judicial  bias and

            judicial error  in the denial of his request for a jury trial

            are entirely without basis in the law.  The alleged source of



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            judicial  bias,  appellant's pro  se  status,  is not  extra-

            judicial.   Therefore, recusal is required only if the source

            of  bias   and  alleged  indications  of   bias  --  ignoring

            appellant's allegations  that  his  car  met  all  inspection

            requirements -- "would create  a reasonable doubt  concerning

            the judge's  impartiality." United States v.  Lopez, 944 F.2d
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            33, 37 (1st Cir. 1991).  The judge focused on the appropriate

            issues in dismissing this case and his actions do not provide

            any basis for  recusal.  Even if there had  been a showing of

            judicial bias,  the requested  remedy -- replacing  the judge

            with a jury  -- would not have been appropriate.   Whether or

            not to  grant a motion  to dismiss is  a legal rather  than a

            factual  question.   Therefore,  only  if a  case  survives a

            motion to  dismiss can it be  heard by a jury.   The district

            court judgment is affirmed.
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