Nollet v. Justices, Trial ( 2000 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1242
JAMES NOLLET; JAMES E. CARROLL; DAVID MERCHANT;
DONALD ROINE; RICHARD SCANLON; EARL H. SHOLLEY;
FATHERHOOD COALITION,
Plaintiffs, Appellants,
v.
JUSTICES OF THE TRIAL COURT OF THE
COMMONWEALTH OF MASSACHUSETTS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lipez, Circuit Judges.
James Nollet, Earl Henry Sholley and James Carroll on brief
pro se.
Thomas F. Reilly, Attorney General, Adam Simms and Robert
L. Quinan, Jr., Assistant Attorneys General, on brief for
appellees.
DECEMBER 7, 2000
Per Curiam. Plaintiffs, James Nollet, James
Carroll, and Earl Sholley, appeal the district court's grant
of a motion to dismiss in favor of defendants.1 See Nollet
v. Justices of Trial Courts of Comm. of Mass., 83 F. Supp.
2d 204 (D. Mass. 2000). We review, de novo, the grant of a
motion to dismiss. See Tag/ICIB Serv., Inc., v. Pan
American Grain Co., Inc., 215 F.3d 172, 175 (1st Cir. 2000).
Upon review of the parties' briefs and the record on appeal,
we affirm.
The plaintiffs' equal protection claim was properly
dismissed because it sought injunctive relief barred by §
1983, as amended by the Federal Courts Improvement Act of
1996, Pub. L. No. 104-317, Title III, § 309(c), 110 Stat.
3853. See Nollet v. Justices of Trial Courts of Com. of
Mass., 83 F. Supp. 2d at 210. As for the plaintiffs' due
process claim, we disagree with the district court's
assertion that an action taken by a state judge in his
adjudicatory role does not constitute state action. See
1 In view of our disposition, we need not decide whether a
pro se may represent The Fatherhood Coalition/CPF, which alleges
that it is "a voluntary association representing the interests
of the fathers in domestic relations matters." The motion for
leave to represent this association filed by non-lawyer John M.
Flaherty is therefore denied as moot.
Nollet v. Justices of Trial Courts of Comm. of Mass., 83 F.
Supp. 2d at 211. A judge acting in his adjudicatory
capacity is a state actor acting under color of state law,
although he may be immune from liability under § 1983. See
Dennis v. Sparks, 449 U.S. 24, 28 n.5 (1980). We agree,
however, with the district court's ultimate conclusion in
this case that the § 1983 due process claim is not
actionable against a state judge acting purely in his
adjudicative capacity because he is not a proper party in a
§ 1983 action challenging the constitutionality of a state
statute. See In re Justices of Supreme Court of Puerto
Rico, 695 F.2d 17 (1st Cir. 1982). Finally, we find that
plaintiffs have waived argument on their Second Amendment
claim. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir.) (reciting that "issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed
argumentation, are deemed waived"), cert. denied, 494 U.S.
1082 (1990).
Affirmed.
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