Bleicken v. Perkins ( 1993 )

USCA1 Opinion

          December 29, 1993     [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          No. 93-1531

            


                                  ERIC V. BLEICKEN,

                               Plaintiffs, Appellants,

                                          v.

                            HAROLD PERKINS, ETC., ET AL.,

                                Defendants, Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE


                   [Hon. Steven J. McAuliffe, U.S. District Judge]
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                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
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               Eric V. Bleicken on brief pro se.
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               Per Curiam.  Pro se plaintiff Eric Bleicken appeals from the
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          dismissal of  his 42  U.S.C.  1983 complaint  for the  failure to

          state  a  claim  upon  which relief  can  be  granted.    We have

          thoroughly  reviewed the  record  and Bleicken's  submissions  on

          appeal.   We affirm the dismissal  for the reasons stated  in the

          magistrate  judge's  report  and recommendation  of  February 12,

          1993.   We  add  that,  where none  of  the appellant's  prolific

          filings demonstrate that he was ever incarcerated for contempt as

          a result of  his failure to pay  child support, he has  failed to

          state a claim for damages for  violation of his alleged right  to

          counsel.  The Supreme Court has stated that "actual imprisonment"

          is the "line defining the constitutional right to appointment  of

          counsel."   See Scott  v. Illinois, 440  U.S. 367,  373-74 (1979)
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          (applying Sixth  and Fourteenth  Amendments in  context of  state

          criminal proceeding).  Since Bleicken has not alleged that he was

          imprisoned, he has failed to state  a claim for violation of this

          right.  

               To the  extent the complaint  might be construed to  state a

          claim   for   equitable    relief   against   Bleicken's   future

          incarceration for  nonsupport absent appointed counsel, the claim

          is too  speculative.   Should  Bleicken be  subjected to  further

          contempt proceedings for nonsupport, he may assert indigence as a

          defense.  If he loses and  is incarcerated, he may appeal to  the

          New Hampshire Supreme Court and, if need be, to the Supreme Court

          of the United States. See Henkel v. Bradshaw, 483 F.2d 1386, 1390
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          (4th Cir. 1973).   If he remains  incarcerated, he may then  seek

          federal habeas relief.  Compare Mann v. Hendrian, 871 F.2d 51, 53
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          (7th Cir.  1989)(affirming dismissal of 42 U.S.C.   1983 suit for

          declaratory  and injunctive  relief  against state  court judge's

          alleged  policy of  refusing  to  appoint  counsel  for  indigent

          defendants subject  to contempt  proceedings for  failure to  pay

          child support).  However, the  present complaint does not state a

          claim  for  injunctive   relief  or  damages  for   violation  of

          Bleicken's alleged right to counsel.

               Bleicken's remaining claims are too numerous to recount.  By

          and large, they allege violations  of state law without reference

          to federal rights.  These alleged violations of New Hampshire law

          do  not  state  claims for  constitutional  violations actionable

          under 42 U.S.C.  1983. See Malachowski v. City of Keene, 787 F.2d
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          704,  708 (1st Cir.), cert. denied, 479 U.S. 828 (1986).  Indeed,
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          the  complaint  essentially  seeks  relief from  numerous  orders

          entered by the New Hampshire superior court in Bleicken's divorce

          and  child custody dispute, particularly the child support order.

          "It is  crystal  clear  that  we  lack  appellate  or  non-habeas

          jurisdiction over  decisions of  the courts  of any  state ....".

          Rivera-Puig  v.  Garcia-Rosario, 983  F.2d  311, 317    (1st Cir.
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          1992).  These  asserted claims of error  were properly dismissed.

          See Lancellotti v. Fay, 909 F.2d 15, 17 (1st Cir. 1990).
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               The  district court did  not specifically address Bleicken's

          claim  that   Judges  Perkins,  Morrill   and  Commissioner  King



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          conspired  to extort Ellene  Bleicken's share of  the proceeds of

          the  sale of  the marital  home to  prevent Bleicken  from hiring

          counsel.  Bleicken's complaint also may be construed as  alleging

          that all of the  defendants conspired against him as  a result of

          "gender   bias"  and  "prosecutorial  vindictiveness."      These

          conspiracy   allegations   are   wholly   conclusory   and   thus

          insufficient.   See Slotnick v.  Staviskey, 560 F.2d 31,  33 (1st
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          Cir. 1977), cert. denied, 434 U.S. 1077 (1978).
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               We  also agree  with the  district  court's conclusion  that

          defendants  Perkins,  Morrill,  Carlson,  Vaughan  and King  were

          entitled  to  absolute  immunity for  their  judicial  and quasi-

          judicial acts.  See  Cok v. Cosentino, 876 F.2d 1,  2-3 (1st Cir.
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          1989)(per  curiam).   While  Bleicken  has  made  the  conclusory

          assertion that certain of the defendant judges knowingly acted in

          excess  of their jurisdiction, his factual allegations belie this

          assertion and fail to establish  a clear absence of  jurisdiction

          sufficient to overcome the defendant judges' immunity.1

               Finally,  we reiterate that  this circuit "do[es]  not allow

          non-lawyers to represent litigants other than themselves."  Amman
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          1.  To the extent that Bleicken's claim against defendant Vaughan
          is predicated on her testimony at the custody hearing, Vaughan is
          entitled to  witness immunity.  See Briscoe v.  LaHue,   460 U.S.
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          325, 329 (1983).  And to  the extent Bleicken  seeks to hold  the
          chief justices of the  New Hampshire superior and  supreme courts
          liable for  the acts  of other justices,  there is  no respondeat
          superior   liability  under  42  U.S.C.   1983.    See  Pinto  v.
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          Nettleship, 737  F.2d 130,  132 (1st  Cir. 1984). These  justices
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          remain  immune  from   liability  for  the  decisions   of  their
          respective courts.

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          v.  Stow School  System,,  982  F.2d 644,  648  (1st Cir.  1992).
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          Accordingly, this appeal  has been allowed to proceed  as to Eric

          Bleicken  alone.   This  principle  also  supports  the  district

          court's  dismissal of Bleicken's equal protection claim on behalf

          of his daughter  Maliaka.  Insofar as Bleicken  also purported to

          state claims on behalf of his deceased mother and other children,

          these claims also were properly dismissed. 

                              Judgment affirmed.2   
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          2.  The appellant's motion to amend his brief is denied.

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