DocketNumber： 93-1531
Filed Date： 12/29/1993
Status： Precedential
Modified Date： 3/3/2016
December 29, 1993 [NOT FOR PUBLICATION]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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Lester Slotnick v. Harold Staviskey , 560 F.2d 31 ( 1977 )
Christopher Amann v. Stow School System , 982 F.2d 644 ( 1992 )
Miguel Rivera-Puig v. Hon. Gabriel Garcia-Rosario , 983 F.2d 311 ( 1992 )
Dr. Gladys Cok v. Louis Cosentino , 876 F.2d 1 ( 1989 )
Ramon Rondon Pinto v. Carlos Jimenez Nettleship, Etc. , 737 F.2d 130 ( 1984 )
Alfred Lancellotti v. Honorable Thomas F. Fay, Etc. , 909 F.2d 15 ( 1990 )
Myron Mann v. James Hendrian , 871 F.2d 51 ( 1989 )