Fischer v. Rollins ( 1993 )

USCA1 Opinion

          June 23, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 93-1519 

                                MARY SEUFERT FISCHER,

                                Plaintiff, Appellant,

                                          v.

                                 PHILLIP A. ROLLINS,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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            Mary Seufert Fischer on various motions pro se.
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                      Per Curiam.   Plaintiff has appealed  from an order
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            denying  in forma  pauperis status.    The appeal  is timely.

            Fiore v.  Washington County Community  Mental Health  Center,
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            960 F.2d 229, 234-35 (1st Cir. 1992).

                      We   bypass   the   question  whether   plaintiff's

            financial  condition  qualified  her for  in  forma  pauperis

            status1   because  we  conclude  that  plaintiff's  complaint

            "lacks an arguable basis  either in law or in fact."  Neitzke
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            v.  Williams,  490  U.S.  319,  325  (1989).    Consequently,
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            plaintiff's action should be  dismissed as frivolous under 28

            U.S.C.   1915(d).  We explain briefly.

                      Plaintiff is  not entitled  to relief on  her claim

            for damages  against state court judges.   Stump v. Sparkman,
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            435  U.S. 349  (1978); Pierson  v. Ray,  386 U.S.  547 (1967)
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            (absolute judicial  immunity).  Plaintiff's  allegations that

            defendants deprived her  of a jury  trial or otherwise  acted

            improperly  during  the  course  of  state  court proceedings

            constitute, in  substance, a  collateral attack on  the state

            court  proceedings,  which  a   lower  federal  court   lacks

            jurisdiction to entertain.  Rooker v. Fidelity Trust Co., 263
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            U.S. 413 (1923);  Lancellotti v.  Fay, 909 F.2d  15, 17  (1st
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            1.  We  note, however,  that  while the  face of  plaintiff's
            financial affidavit suggested she  owned a $165,000 home with
            significant furnishings and had no debts or dependents, other
            filings indicate that  plaintiff lives in a shelter, has lost
            the  home and  furnishings,  and has  very limited  financial
            resources.















            Cir. 1990).  Plaintiff's Fourth Amendment  claim is barred by

            the statute of limitations.   Wilson v. Garcia, 471  U.S. 261
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            (1985);  Mass.  G.L.  ch.  260,      2A  (3-year  statute  of

            limitations).  Plaintiff's challenge to the constitutionality

            of state statutes omitting the names of presidential electors

            from  the ballot is legally meritless.   Article two, section

            one  of the  Constitution authorizes  a state  legislature to

            determine how presidential  electors shall  be appointed  and

            does  not require the electors' names to appear on the ballot

            if  the  names  of the  candidates  for  president and  vice-

            president are  on the ballot.   Hawke v. Myers, 132  Ohio St.
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            18, 4  N.E.2d 397  (1936).   And plaintiff's  contract action

            against  her  ex-husband  must   be  dismissed  for  lack  of

            diversity jurisdiction.

                      The  order  denying  in  forma pauperis  status  is

            summarily vacated pursuant to First Circuit Rule 27.1 and the

            case  is remanded to  the district  court with  directions to

            dismiss the  action as frivolous  under 28 U.S.C.    1915(d).

            Appellant's  motion to  correct record  and suspend  rules is

            denied.

                      Vacated and remanded.
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