Clapp O'Callaghan v.

• Court: Court of Appeals for the First Circuit
• Decided: May 8, 2000
• Docket: 00-1050
• Status: Published

Opinion

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 00-1148

DANIEL J. O’CALLAGHAN; ALISON E. CLAPP O’CALLAGHAN,

Plaintiffs, Appellants,

v.

HOMAYOUN SHIRAZI, M.D., ET AL.,

Defendants, Appellees.

____________________

No. 00-1149

Plaintiffs, Appellees,

BUCKLEY, RICHARDSON & GELINAS, LLP,

Defendant, Appellant.

PETER B. IVES, ET AL.,

____________________ No. 00-1150

GAIL L. PERLMAN, HON.,

MARY LYNN CARROLL, ESQ.,

_____________________

No. 00-1151

Defendants.

PETER B. IVES, REVERAND; THE FIRST CHURCHES OF NORTHAMPTON,

Defendants, Appellants.

CORASH, ZURN & BELSKY, LLP AND SUCCESSORS, IF ANY, AND SUSAN C. SCHRODER, Defendants.

No. 00-1152

DANIEL J. O’CALLAGHAN,

SEAN M. MURRAY, HON., ET AL.,

Defendants. _____________________

No. 00-1153

CORASH, ZURN & BELSKY, LLP, AND SUCCESSORS, IF ANY,

SUSAN C. SCHRODER,

Defendant. _____________________

No. 00-1323

DANIEL J. O’CALLAGHAN; ALISON E. CLAPP O’CALLAGHAN, Plaintiffs, Appellants,

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Chief Judge, Selya and Stahl, Circuit Judges.

Daniel J. O’Callaghan and Alison E. Clapp O’Callaghan on brief pro se.

May 3, 2000 Per Curiam. The court is in receipt of

appellant’s opening briefs, and, after a thorough review of

those submissions and the record on appeal, we summarily

affirm the judgment in Ct. App. Nos. 00-1148 and 00-1323.

See 1st Cir. Loc. R. 27(c).

Appellants Daniel J. O’Callaghan and Alison E.

Clapp O’Callaghan (“the O’Callaghans”) raised four

challenges to the state guardianship proceeding in question:

1) the defendants/appellees violated their right of access

to courts and their rights to equal protection and due

process; 2) the Massachusetts General Rules of the Probate

Court, Rule 5 and Massachusetts Uniform Probate Court

Practices XXII are unconstitutional “as applied”; 3) their

“Federal rights” were violated because the probate judge

relied on the report of a physician who the O’Callaghans

claim was not licensed, and on the report of the guardian ad

litem, who the O’Callaghans say had a conflict of interest;

and 4) several of the defendants conspired together and

caused the state court to violate the O’Callaghans’

constitutional rights. The lower federal courts plainly lack jurisdiction to consider these claims under the

Rooker/Feldman doctrine. See District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v.

Fidelity Trust Co., 263 U.S. 413, 415-16 (1923).

The Supreme Court has allowed that the lower

federal courts do have subject matter jurisdiction in some

cases involving challenges to state court proceedings, but

only where a “general challenge” to state rules or statutes

are raised, so that the claim is not “inextricably

intertwined” with the state court claims. Feldman, 460 U.S.

at 486. This court has

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The O’Callaghans’ first and third claims clearly

are barred by the Rooker/Feldman doctrine because they

allege that certain actions in the state court proceeding by

the defendants violated their constitutional rights; they do

not allege that the state rules themselves were

unconstitutional. Thus, the first and third claims are

“inextricably intertwined” with the state court claims. The

fourth claim also is barred by the Rooker/Feldman doctrine.

It alleges in general, conclusory terms that the appellees

conspired to cause the state court to reach a wrong result.

-33- As framed, it simply seems to be an indirect way of again

saying that the state court’s decisions were wrong.

It is not entirely clear whether the O’Callaghans’

second claim raises a general constitutional challenge to

state rules, but even if this court were to assume (without

deciding) that it does raise a general constitutional

challenge, the claim is barred. The court is unable to

discern from appellants’ brief in what way they claim the

state rules are unconstitutional. Without a well-developed

argument on this point, the issue has been waived. See

Martinez v. Colon, 54 F.3d 980, 990 (1st Cir. 1995).

As the O’Callaghans’ substantive appeal lacks

merit, we likewise see no error in the district court’s

order requiring them to post an appeal bond; and we see no

error in the district court’s order denying their request to

impose a similar requirement on the cross-appellants.

Likewise, their challenge to the district court’s denial of

the motion for recusal lacks merit. Their challenge to the

denial of Fed.R.Civ.P. 27(b) relief is moot.

A number of motions also are pending in these

matters, and our summary affirmance moots most of those

motions. The following motions are denied as moot: 1)

appellants’ “emergency motion” for Fed.R.App.P. 8 order

-34- granting injunction while appeal pending; for expedition of

appeal process; and for retention of appendices filed March

2000; 2) appellees’ motion for an order striking appellants’

improper appendix and requiring filing of proper appendix;

and 3) appellants’ motion to consolidate to the extent it

addresses appeal nos. 00-1148 and 00-1323. The motion to

consolidate is allowed to the extent it addresses the cross-

appeals; cases 00-1149, 00-1150, 00-1151, 00-1152 and 00-

1153 shall be consolidated. Appellants have withdrawn their

motion to stay, and the court denies their motion to certify

questions to the U.S. Supreme Court.

Appellants’ motion to dismiss the cross-appeals is

denied. Federal Rule of Appellate Procedure 28(h) says that

for purposes of applying Fed.R.App.P. 30 in a case involving

one or more cross-appeals, the party who filed the first

notice of appeal is the “appellant.” Since the O’Callaghans

filed their notice of appeal first, they alone were

“appellants” for purposes of determining the parties’

obligations under Rule 30(b). Thus, their argument that

appellees/cross-appellants failed to meet their Rule 30(b)

obligations fails.

-35- With regard to an Appendix, the court directs the

cross-appellants to prepare and file a new Appendix directed

only at the claim(s) raised by the cross-appeals.

Appellants’ motion to disqualify counsel for

appellee/cross-appellant Hon. Gail L. Perlman is denied.

The O’Callaghans have failed to explain how appellee Sacks’

brief contact with co-appellee Perlman’s law firm created a

conflict of interest; and we see no conflict. Finally,

appellees/cross-appellants have moved for an appropriate

procedural and scheduling order. The request is allowed,

and the clerk is directed to set an appropriate schedule for

the cross-appeals.

The judgment in Ct.App. Nos. 00-1148 and 00-1323

is affirmed. See 1st Cir. Loc. R. 27(c). The motion to

consolidate is allowed in part; Ct. App. Nos. 00-1149, 00-

1150, 00-1151, 00-1152 and 00-1153 are consolidated; the

motion for a procedural and scheduling order is allowed; the

Clerk is directed to set an appropriate schedule for the

cross-appeals; appellants’ motion to stay has been

withdrawn; all other pending motions are denied. Cross-

appellants are directed to prepare and file an Appendix in

accordance with the procedural and scheduling order to be

issued by the Clerk.

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